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Section 134.(5) needs court orders

This is an extremely important judgment for all condominium owners. Section 134.(5) of the Condo Act, the ability of a condo corporation to recover all of its costs as common maintenance fees if it obtains a court order, laid at the heart of the matter.

It appeared to me that the condo corporation’s confidence that they would get court orders was the reason that they would not settle with the owners unless it was paid its full costs.

A second issue is that a condo’s directors and owners need to show tolerance, especially towards children.

The third issue lays in the obligations a board has to settle disputes with its residents, in good faith, before applying for court orders.

There were several exchanges between the lawyers and Justice Myers on these three points.

PCC No. 231 & [NAME_REDACTED] et. a1.
Court File No: CV-14-514873
05 March 2015
Ontario Superior Court of Justice
393 University Avenue Road
Room 802
Justice Myers

Origins of the dispute
On 05 May 2014 the mother walked her two children, one of school age and one that was younger, along the corporation’s roadway to the street in the morning to wait for the school bus. There are no sidewalks so the cars have to share the roadway with pedestrians.

The flowerbed and rocks

While waiting for the school bus, the two children walked and played in the unplanted flowerbed, swung from a tree and climbed on top of the rocks.

The corporation treasurer saw this and told the mother to stop her children from going into the flowerbed. They had words.

On May 12, 2014, the corporation management distributed a notice to all the residents stating that kids were playing in the front garden beds and swinging from the trees. The residents were encouraged to report any incidents to the management office and to document the incidents with photographs.

Over the next several months, the treasurer constantly monitored and photographed the mother and her two children as they waited for the school bus and, every second day for five months, another owner followed them in an automobile.

In response, the mother took photos of the observers, yelled at them and on five occasions phoned 911 to complain that she and her children and were being criminally harassed.

Corporation’s position
On 01 December 2014, the corporation made an application to Superior Court for injunctions, declarations and orders that the respondents, the parents of the two young children, be restrained from:

entering the common elements of PCC 231 except for the purpose ingress and egress from the unit;

communicating, harassing or having any contact, except in the case of an emergency, with any member of the board of directors, any management or security personal, or any other employee of PCC 231, or any other person doing business with PCC 231, including but not limited to, any individuals who have sworn affidavits in these proceedings;

coming within 25 feet of any of the individuals who have sworn affidavits in these proceedings,

disturbing the comfort and quiet enjoyment of the units and common elements of the other owners, or their family members, guests and visitors.

There were a number of requests for orders to restrain the respondents from destroying the common elements, disturbing the quiet enjoyment of the other residents while on the common elements and to stop them from allowing their children to play on the roadways.

There was also a request for an order for the respondents to pay and fully reimburse PCC 231 for all costs, including legal costs.

Owners’ position
Taking up a suggestion from one of the police officers that attended a 911 call, the respondents commenced a Human Rights complaint against the corporation and the corporation’s treasurer.

That along with the respondent’s reluctance to pay the corporation’s full legal fees appears to have triggered the corporation's application. In response, the owners made a counter-application.

The owners agreed to sell their unit and the unit was up for sale on the day of the hearing.

Section 134 (5)
Throughout the hearing, it was clear that the corporation wanted one or more court orders so that it could recover all of its costs, which Justice Myers stated amounted to $150,000. The respondents put in a counter-application also requesting their costs.

At one point Justice Myers asked the corporation’s lawyer:
J. Myers:
“You think you are going to get all your costs paid?”
PCC 231:
“Costs are a different issue.”
J. Myers:
“Costs are driving everything with this case.”

The hearing
Note: The following is from notes that I took while I listened to the hearing. If the notes seem disjointed it is because I had trouble keeping up with the hearing.

Some of the exchanges between the lawyers and Justice Myers are important for you to better understand Justice Myers judgment.—editor


Opening statements
PCC 231:
Will use extensive use of factum.
J. Myers: Seeking an adjournment.
PCC 231: Objects.
J. Myers:
"How long to sell the condo? Any terms discussed with Fine? Anything settled?"
Respondents:
"No. We need an interim agreement."
J. Myers: "Can your client be looked at without calling 911?"
Respondents: "Last call to 911 was in September 2014."
J. Myers: “Why should we not wait until they sell?”
“Can’t believe I read so much material over just this. Little children playing in a flowerbed must have upset a lot of people.”

PCC 231 arguments
PCC 231: My client is entitled to an order not an adjournment. There are ten affidavits on one side and 19 on the other side. Some say she is a wonderful mother, some say she is not. There were 911 calls, screaming and calling a woman a pedophile.”

“Do you not feel silly saying these things?”
PCC 231: Not reasonable to ….
J. Myers: “If there mental issues then a double accommodation."
PCC 231: There was six months of hell for the neighbours. 911 calls, screaming, not fair to downplay this behaviour. Very important for the owners.

Convert the action to a trial. The affidavits on the other side do not address the issues.

“In one incident in January kids running down the street. Nov 21 a screaming issue with one of the children.”
J. Myers: “I think a game of ball hockey will breakout and will cause all kind of hell.”
PCC 231: Once the Application was served, everything settled down.”
J. Myers: “If everything settled down and the owners are selling why an order now?”
PCC 231: There was danger to the condo by children not being properly supervised.
J. Myers:
No it is not. A busybody board cannot be held liable for ….. supervision of children.
PCC 231: Mother let children lie on the road.
J. Myers: “It seems people in the condo care about 911 calls more than each other. Why do you need an order to stop 911 calls? Is there a rule in the condo that you cannot call 911 when you feel threatened or someone is in your face?”

“Want a court order”...“Not getting it”.
PCC 231:
Want a court order because it might happen again.
J. Myers: “Not getting it. What do you want if I adjourn for 30-60 days?”
PCC 231: Should be some order for costs. Should be (long pause). It should not be adjourned. A reign of terror for over six months. Five calls to 911. Screams on the common elements Mother upset to the point of crying.
J. Myers: Why do you suppose?
PCC 231: No reason.
J. Myers: "Yes there is. Your client was watching her all the time."
PCC 231: Not the residents and board conspiring against them.
J. Myers: "Of course there is. It takes two to tango.”
PCC 231: "No witnesses on the defence on why she was crying.”
J. Myers: “Am I supposed to determine if it is real or reasonable today? Can’t it be a reasonable reaction to what is happening to her?”
PCC 231: Human Rights complaint driving these proceedings.

Not proper conduct in a condo to give a neighbor the finger, call her a pedophile and call her a crazy lady. No one should have to put up with this ridicule.

Allows children to go in harms way on roadway. Main entrance and exit. Mother is 20-40 feet away on a phone while her kid is laying on the roadway. Potential liability to the condo responsible for the common areas to be safe. Children allowed to scream on the common elements annoy neighbours.

Condo living is like a club
PCC 231: Condo living needs stability. It has special laws; a city within a city. It is like a club. Members is an interesting term. Responsibility to act civilly. The declaration and rules are vital.
J. Myers: “One difference. With a club if the board finds someone they do not like, they make their life miserable.”
PCC 231: “A cynical view.”

Gave examples of unacceptable behaviour in other condo judgments. Stated that in this case at least five people refused to get involved because they feared reprisals from the respondents.
J. Myers: “How can you not identify people?”
PCC 231: Went on to quote from another condo judgment.
J. Myers: “Every one of these cases is different in kind. People’s lives …..because a couple of kids screamed for a minute?”
PCC 231: Your honour said that this case is all about costs. Everyone knows fighting these type of applications can result in devastating costs. Any cause to be concerned, you run out of the way.
J. Myers: “The costs would be high, Two volumes already.”
PCC 231: What the respondents did was declare war on the condo. They had ten affidavits. Applicants had 19 affidavits. There were 13 examinations of witnesses. Did not make sense until the Human Rights case came along. Then the light came on. (There was an earlier reference that the respondents were asking for $50,000 in their Human Rights application.)

The remedy is the application for an order. Mediation or arbitration does not comply because of a violation of the Act.
J. Myers: "Does it matter if I rule there was no violation of the Act?”
PCC 231: No. Book of Authority.

Stated that the treasurer, after a 911 call, was questioned by the police and she missed a day of work.
J. Myers: “Is she going to be a victim forever? Not aware of tort for having the police talk to you. Small claims. Good luck.” Missed a day of work. Not good to misuse 911."
PCC 231: “We have a difference of opinion.”
J. Myers: “Well, unless you go elsewhere, mine wins.”
PCC 231: The counter application would help them with their Human Rights case. Boggles my mind that they did this. No evidence that the board acted badly or in bad faith.

Be careful with your judgment … be used in Human Rights application. Human Rights is a very scary place.” It does not matter if board had issues with other condo residents.

Response
Respondents: Allegations go both ways. My clients were harassed and being watched. Application for orders go both ways. One of the owners who put in an affidavit was going for a position on the board.
J. Myers: "An entrenched board."
Respondents: Other owners had issues with the board. We tried to keep it in proportion. The treasurer kept a daily log. Read through the log. It really is something. She took an active role on what the mother was doing. Cannot be seen as a normal board activity. Clients subject to ridiculous surveillance.

We can’t talk of costs until we talk of merits. The costs have become the sticky point.

This is an unfortunate situation. Surprised we are here.

This type of hearing was not contemplated. The case is not alive. Conduct is six to eight months ago. Conduct was not an issue at the time of the application.

There is more than one side. Not common to have 19 affidavits. Not unreasonable for respondents to say their side. Not fair to say that the condo did everything to prevent litigation.

Bushwhacked
Respondents: The respondents should have known a lawsuit is pending.

There was no damage to common elements flowerbeds or grass. There are questions if there was any damage, There are no sidewalks. Must walk on the road or curb.

What is reasonable noise from a young child? Other kids act the same way. A condo is a family friendly environment. Other residents say the mother is a good parent.
J. Myers: "What about the 911 calls?"
Respondents: The applicant misrepresenting what the mother said. She did not say [NAME_REDACTED] would not like it. She said something else. When is calling the police a rule violation?

What is reasonable?
J. Myers:
“Reasonably is not subjective. What would the man on the Yonge Street bus think?  There was no emergency. It was a nasty neighbour fight.”
Respondents: "The Human Rights complaint is to get similar relief to what the condo wanted."
J. Myers
"Section 134.(5) has nasty cost risks. This is an unusual condo fight. Three feet of material."

“This case is making law.”

Respondents: "Section 134 of the Act can be brought forward by an owner. “This case is making law.”
J. Myers: "Three weeks of silence. That is when the application was prepared."
Respondents: Section 37 & 134. The board has not acted in good faith.

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