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Board vs owner
Limitations Act, 2002 – two years to commence an action
Wexler sues corporation in Small Claims for harassment    Part 1
Wexler wins an appeal on court costs                                 Part 2
Wexler has costs reduced to 15% of her claim                    Part 3

Noise complaints
Board ignored dance studio noise complaints                                  (Dyke Part 1)
Level of quiet to which an apartment dweller is not legally entitled  (Dyke Part 2)
Endorsement on costs                                                                  (for Dyke Part 2)
Wu v. PCC 245—Oppression    (Failure to fix a noise/vibration problem)

Water leaks and mould
A Bad Case of Mould:  Goodwin v. DCC No. 54
A water leak becomes ongoing leaks
Leaky washing machine leads to a lien
A leaky shower not proven to be the cause
Condo owner not responsible for blocked drain—unit lien removed  Part 1
Condo owner's win—on appeal—is sent back for new trial                Part 2

Miscellaneous
An appeal of a small claims case—owner loses   (deservingly)
Condo changing arrears collection practices
Going to court unrepresented
A caretaker can live in single-family condo unit
What are the condo fees if there is an error in the status certificate?

Harassment
Board harassing owners

Entry into units
Must allow entry to exterminate cockroaches                    Part 1
YCC #41 seeking an Order over breached Court Order    Part 2
Bad odours and bedbugs must be dealt with
An owner & daughter can not break the condo's rules
Commercial unit uses too much water

Parking
The power of the collective is not absolute —Justice Myers


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Valentina Vasilescu Tarko et al.  vs MTCC No. 626
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 corporation.

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.

Car 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 Special Assessment.

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 Assessment.

This is important
At 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.

Court action
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.

Costs
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 costs.

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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 occurred.
(How can a small claims case for just over $500 result in the corporation paying $35,000 in legal costs?)

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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:
(a)
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
(b)
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 that threshold.

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."

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Wexler v. CCC No. 28
Superior Court of Justice—Divisional Court
Court File No: 16-2223
Before: Justice M. O'Bonsawin
25 September 2017

Issue
Did Deputy Judge Gouin err when he issued his costs award against Ms. Wexler?

Analysis
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 the corporation.

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 Ms. Wexler.

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.

Conclusion
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 disbursements.

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:
(1)
this appeal is allowed; and
(2)
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.

Bottom line
CCC # 28 was awarded $378.77. I estimate that the corporation's total legal costs could be between $40,000 and $50,000.
—CondoMadness

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Dyke v. Metropolitan Toronto Condo. Corp. No. 972

Ontario Superior Court of Justice—Toronto
CV-11-443081
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.


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Dyke vs 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 above hers.

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 corporation."

(Please see Dyke vs MTCC No. 972 in Courts- Excessive legal fees to read the findings on this case's legal costs.)

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Dyke v. 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 overriding 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 to the defendants.
 
Costs of the Action
MTCC # 972
The defendants, 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 Motion
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:
(a)
To MTCC the sum of $4,500 inclusive of disbursements and HST;
(b)
To Samir Gupta and Renu Gupta the sum of $3,000 inclusive of disbursements and HST;
(c)
To Feizal Satchu and Parul Gupta the sum of $750.

Conclusion
The plaintiff was ordered to pay the defendants for their costs of the motion and the action the following amounts:
(a)
To MTCC #972, the amounts of $15,000 plus $4,500, for a total sum of $19,500;
(b)
To Samir Gupta and Renu Gupta, the amounts of  $17,500 and $3,000, for a total sum of $20,500;
(c)
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.

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Jiakang Wu 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 $1,500.

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 Court

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 process.

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.

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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.

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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.

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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

Costs Decision
This hearing was to determine costs due to CCC #66's failed attempt to be granted an appeal.

Mayrand's position
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."

Condo's position
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 party’s expectation.

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 costs.”

Justice Beaudoin awarded her costs in the global amount of $7000, payable forthwith.

What's next?
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.

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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 of credit.

The owner sued the condo corporation to recover the $16,599.68. The owner lost. Now he will have additional legal costs to pay.

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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 #502.

The condo corporation had their plumber investigate the water leak on several occasions and determined that it originated from the owner's ensuite shower.

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 the lien.

Jagat Rao sued to recover this expense. He disputed the condo corporation's facts on several grounds:
a)
He did not use the ensuite shower at the time of and during the leak and only sporadically in the previous four years;
b)
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;
c)
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 to September;
d)
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;
e)
He instructed any house sitter not to use the ensuite shower;
f)
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. 

Disposition
In the result there was a judgment for the plaintiff against the defendant as follows:
a)
$5,958.16 for the Claim;
b)
$175 for court disbursements;
c)
Prejudgment interest at the court rate on and from April 16, 2012.
d)
Postjudgment interest at the current court rate.

Costs
The judge found that it was appropriate to award costs and disbursements to the plaintiff in the amount of $1,800 all inclusive.

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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 the lien.

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."

"I 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."

Damages
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.
 
Disposition
There shall be judgment for the plaintiff against the defendant as follows:
 
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.
 
Costs
Costs 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.

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Washington v YCC No. 441
Divisional Court File No: 409/16
Justice Nordheimer
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), [2008] 3 S.C.R. 41 where he said, at para. 49:
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.
[11]           While 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 plaintiff’s unit.


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."

Costs
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.


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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.

On December 22, 2015, the Appellant advised the Respondents that they could not enter his unit unless he was present. He then changed the locks.

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 repaired it.

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 habitable.

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 and unreasonable.

Costs
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 and taxes.”

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1349425 Ontario Limited (Venice Fitness) v. MTCC No. 1392
Court of Appeal for Ontario
Citation: 1349425
Document: C57600
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 liens.

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 motion.

Venice and the unit owners were successful on this appeal in obtaining clarification of the order appealed from and received costs fixed at $5,000.

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.
editor

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Patriarcki v CCC No. 621
Ontario Superior Court of Justice
Court File No: 08-CV-41500/08-CV-41500A1
Justice Maranger
Heard: 26-28 February 2014

This case demonstrates two important points that condo owners need to heed.
1.
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.
2.
Have hard evidence that proves your case.

This case also contained a warning for the condo corporation and the contractor. Reading this warmed my heart.   editor

A 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.”

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Condominium Plan No. 9910225 vs
Allen Davis and Adelaide Davis
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:

The Charter
Because 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 Freedoms does 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.

This is a disappointment.

Human Rights
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.

By-laws
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:
iv. use or permit the use of his residential unit other than as a single family dwelling or for a purpose other than for residential purposes
“Single 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”.

Are the defendants doomed?
Article 65 of the by-laws is entitled “Declaration of Purpose”, and provides:

The restrictions in use in these bylaws have the following purposes:


a.
To provide for the health and safety of condominium occupants;
b.
To maintain the residential Units, parking units and common property units in such a manner as to preserve property values;
c.
To provide for the peace, comfort and convenience of the owners and occupants;
d.
To develop a sense of community

The 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.”

Today 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.

“Article 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.”

“It 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.”

What a wise and wonderful judgment. It makes me proud of Canada’s justice system.

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TSCC # 1510 vs McCauley
Court File No.  07-CV-341144PD3
Justice Darla A. Wilson
Heard:  08 June 2008
            10 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 application.

Claims against Anne McCauley
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 corporation.

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. McCauley.

Chickenshit
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 written permission.

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 surveillance cameras.

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 Act.

The case against Mr. McCauley
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 the property.

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 doors.

Just suspicions
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.

Costs
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 remote.

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 launched.

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.

Judges opinion
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 award
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.

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1716243 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 month.

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.

Judgment
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.

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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.
 
Costs
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 respondents.
 
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.

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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 roaches.

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 exterminator.

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 respondents’ unit.

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.

Costs  
Each party beared their own costs.

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A
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 unit.
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 Unit.
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 contractor).
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 followed.
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 debris.
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.
Order
In summary and for the reasons set out above, the judge ordered:
1.
The respondent, 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.
2.
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.
3.
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.
4.
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.
5
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:
Fees $13,498.75
HST on fees 
1,754.84
Disbursements 588.47
HST on disbursements 75.33
Total $16,187.39

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 application.

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 proceeding.

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 taxes).

In summary, I fix the applicant’s costs in this matter on a substantial indemnity basis as follows:
Fees
$8,000.00
HST on fees
1,040.00
Disbursements 
588.47
HST on disbursements
75.33
Total
$9,703.80

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."

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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
Docket: C59884
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.
—editor

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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 expenses.

An owner bought a commercial unit to grow marijuana pursuant to a licence from Health Canada, the property manager noticed that water consumption skyrocketed.

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.”

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Couture v TSCC No. 2187
Ontario Superior Court
Court File No: CV-15-527224
Justice F.L. Myers
Date: 04 December 2015

Overview
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 different owner."

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.
1.
The Board returning her April and May postdated maintenance fee cheques in the amount of $780.51, which include the $50 parking fee.
2.
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."
3.
"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."
4.
"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 cheques."
5.
"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."
6.
"Moreover, in separate correspondence the Board threatened to levy an “administration fee” of $250 as compensation for the inconvenience of corresponding with the applicant."
7.
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."
8.
"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 corporation. [1]"
9.
"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 split equally."
10.
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 lawful one."
administration fees (fines)
11.
"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."
12.
"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."
13.
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.
14.
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 properly claimed.

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.
15.
Finally, by notice of application dated September 13, 2015, the applicant sued the condominium corporation and each of its directors
Analysis
1.
"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 conduct either."
2.
"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."
3.
"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."
4.
"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."
5.
The oppression remedy does not protect a party’s wish list.
6.
"... 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."
7.
Oppression
"In light of the breaches and oppression found, the applicant is entitled to compensation under subsections 134(3)(b) and 135(3)(b) of the statute."

"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."
8.
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."

Outcome
"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.”


Note: 1
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 inclined.

Interesting case
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 suites.

Justice Myers remarks are both informative and witty. His judgments are a joy to read. Here is an amusing National Post article on this condo dispute.
http://bit.ly/1IGlr2u


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