Section 134.(5) needs court orders
—the judgment
As you read the judgment, you may wonder about Justice Myers' reference
to Gladys Kravitz. Gladys was a fictional character on a popular TV
show that entered the American lexicon, and is even today used as a
synonym for a nosy neighbor or colleague.
PCC No. 231 & [NAME_REDACTED] et. a1.
[NAME_REDACTED] et.
al. v. PCC No. 231
Court File No: CV-14-514873
Superior Court of Justice
Justice F. Myers
05 March 2015
(Hand written judgment)
PCC N0. 231 and [NAME_REDACTED] et al.
Ontario Superior Court of Justice
Court File No: CV-14-514873
Before: Justice Myers
This endorsement applies to Application CV-14-518550 too.
Each side applies for compliance orders against the other under s.134
of the Condominium Act 1998 SO 1998 c19.
While perhaps not unique, these applications are unusual in that the
allegations are heavily contested. Moreover, the reasonableness of much
of the behaviour alleged depends upon the viewpoint of the assessor.
Trying to be objective as best as any human being can ever be so, it
appears that [NAME_REDACTED] has a rather low threshold for fear and a
particularly strong sense that offence is the best defence. On the
other hand, the Corporation’s witnesses demand perfect quiet whereas
“quiet enjoyment” takes into account that others are entitled to
reasonable use and enjoyment of common elements.
Moreover, the degree of their fixation on [NAME_REDACTED] and her
children makes Gladys Kravitz pale in comparison. The log kept by [NAME_REDACTED] was both frightening frequent and picayune. There was
nothing neighbourly or reasonable about that
The bulk of the wrongdoing alleged by both sides was between [NAME_REDACTED] and [NAME_REDACTED]. There is no way for me to prefer the
evidence of one over the other in this application. Moreover, I do not
need to do so in order to resolve these proceedings.
The condo corporation has not proven a breach of subsection 116 or 167
of the Act. There is no evidence of the Respondents or their children
causing damage to common elements beyond de minimis levels. Moreover,
[NAME_REDACTED] or others upset at being called names or having to speak
to a police officer is not injury to a person. The condo corporation is
not the Children’s Aid Society and they are not compelled by fear of
unit owners personal liability to protect the roadways from [NAME_REDACTED] or to express their disapproval of her parenting style.
[NAME_REDACTED]’s behaviour may have breached Rule G’s, of the condo
corporation depending on one’s view of the reasonableness of her
responses. But neither side displayed the co-operative foundation of
condominium living. Neither side behaved like reasonable neighbours.
Page 4 (This part of the judgment is
vert faint & hard to read.—editor)
The condominium corporation brought the application and tried to get ex
parte relief. .... Would not have protected witness
identities and I reject that
rationalization It was a ....
aggressive step that ...... astute judge
Relief ....... mediation which S132 and S134(2) for the
type of here was an aggressive approach undermining the condo
corporation’s processed desire for resolution.
Subsection 134(3)(c) provides that the courts can grant such relief as
is fair and equitable in the circumstances. The circumstances include
that the Condominium Act is remedial legislation and is to be read to
support the undertaking community values of condominium living. Also,
the conduct complained of on both sides stopped before this application
commenced. Finally, the respondents are selling their unit.
It seems to me that the status quo is that the parties have found a
modus vivendi. Until the Respondents sell their unit and move, this is
to be encouraged. I should not skew the outcome with findings or orders
that are not currently needed. An injunction will not be granted for no
practical purpose.
Therefore, the applications are adjourned for sixty (60) days. Either
party may seek an earlier return date on guidance of new material
breaches by the other after today. If a party wishes to schedule a
hearing, the parties should agree on dates for a brief case conference
under Rule 50.13 and schedule an appointment with my assistant.
I suspect that much driving this litigation turns on the costs
consequences of s.134(5) of the Act. The Applicant’s overkill may be
attributed to a sense that the Respondent will pay full costs under the
statue. This is a misalignment of incentives towards
disproportionality. Similarly, the vociferousness of the Respondent’s
response is disproportional to the severity of the historical conduct
alleged and more consistent with an effort to create a negotiating
platform to avoid the negative costs outcome under s.134(5). Costs
reserved to the final hearing in 60 days or thereafter. Parties to book
a return in 60 days through C.P.C. before me for 1 hour.
For clarity, I note that I am not adjourning the matters to give
different consideration to them later. I do not think that it is just
or equitable to give relief to either side on the evidence before the
court. However, new facts that may arise while the respondents try to
sell their unit as quickly as reasonably possible could lead to a need
or desirability for intervention and may also affect the assessment of
costs.
Judge’s Initials : J M
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