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Entry into units

Owner has to let maintenance men in

Owner must allow entry for fire inspections

A lack of co-operation proves expensive

Owner wanted to be home during entry

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

MTCC No. 179 v. Chow, 2012
Court file No: CV-11-425761
Ontario Superior Court of Justice
24 January 2012
Justice Glenn A. Hainey

Endorsement to costs
The condo took the couple to court to force them to allow the corporation to make quarterly fire safety inspections of their condominium.

The issue at this hearing was costs. The condo was seeking their full legal costs.

The owners submitted that their financial situation makes it impossible for them to satisfy a substantial costs order. They provided the judge with financial information demonstrating that monthly net income is less than $100 more than their monthly fixed expenses.

The judge decided that the condominium corporation should receive full costs for the expenses in compelling the respondents to comply with their fire safety obligations.

The judge carefully reviewed the applicant’s costs outline and was of the view that it was fair and reasonable under the circumstances and, accordingly, the condo was awarded costs on a full indemnity basis of $12,000, payable by the owners.

The amount was to be added to the common expenses for the respondent’s condominium unit and was payable over a four-year period which should result in an increase in the respondents monthly common expenses of approximately $250.

There are two issues of importance. One, the condo corporation has the right to enter owners' units to perform certain duties and if the owners' refuse, the corporation can take them to court to gain entry and to recover their legal costs. The second point is that this can prove to be very expensive for the uncooperative owners.

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235 Grandravine Drive Inc. v. Tereshko, 2015                 
Ontario Superior Court of Justice
Court File No: CV-13-475635
Date: 20 March 2015
Justice Carol J. Brown

Defendant unrepresented

The plaintiff, (a co-op residential tower), was wholly successful in its action to enforce its rights pursuant to the Co-ownership Agreement dated October 26, 1990. The Corporation has a duty to enforce compliance with the Corporation's Articles, Rules, Bylaws and Co-ownership Agreement, and, in this case, did so as regards non-compliance with the Fire Inspection Order, with which the defendant failed to comply and which posed a documented health and safety risk to the other co-owners and the building.

Pursuant to the provisions of the Co-ownership Agreement, in the event of a default, such as the failure to comply with the Fire Inspection Order in this case, the co-owner shall pay to the Corporation on or before the fifth day after request, all losses, liabilities and reasonable-in-house or other costs incurred by the Corporation, including all lawyers' accounts (determined as between solicitor and his own client).

Based on this provision of the Co-ownership Agreement, the plaintiff seeks its costs and disbursements inclusive of HST on a full indemnity basis in the amount of $33,592.34. The other co-owners should not be responsible for or bear the cost of the defendant's failure to comply with his obligations under the Co-ownership Agreement.

Taking into account the factors to be considered in awarding costs, as set forth at Rule 57.01 of the Rules of Civil Procedure, as well as the relevant provisions of the Co-ownership Agreement regarding costs set forth above, I award the plaintiff its costs on a full indemnity basis in the amount of $33,592.34.

I believe that this was a hoarding issue that the owner would not, or could not, clean up. The court ordered the owner to pay $13,000 in cleaning costs in addition to the legal fees.

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YRCC No. 922 v. Frank Lu et al
Ontario Superior Court of Justice
Court file No: CV-15-012249-00
Released: 15 April 2016
Madam Justice C.A. Gilmore

The condo corporation applied for a declaration that the respondents have breached section 117 and 119 of The Condominium Act, 1998, by failing to permit the corporation to enter Mr. Lu’s townhouse unit to carry out repairs required as a result of flooding in the unit, and an order permitting the corporation to enter the unit as necessary to:

(a)	inspect the unit and common elements and determine the repairs required as a result of flooding in the unit, and;
(b)	to carry out the required repairs to the unit and common elements.

The owner went to great lengths to prevent entry, prevented repairs from being done and then slowed down and dragged out the court application. Why? Hard to say.

The condo corporation was successful in it's application.

Costs
"While it is true that the Act provides for substantial indemnity costs to be paid to ensure that compliant condominium owners are not made to pay for others who do not comply, it is often hard to justify the amount of costs sought given the actual amounts at stake.

However, in this case, if Mr. Lu was as amenable to YRCC 922 entering his unit to inspect and repair as he led this court to believe on April 5, 2016, the question begs as to why this has not occurred in the 17 months since the last request for entry was made by the condominium?  If he was as co-operative as he would have this court believe, the repairs would have been effected long ago and this application entirely unnecessary.

In the circumstances I find that the respondents should be responsible for costs in the amount of $12,000, payable immediately."

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Elena Balland v YCC No. 201
Ontario Superior Court of Justice—Divisional Court
Divisional Court File No: 51/16
Released: 08 April 2016
Justices: Dambrot, Stewart, Thorburn

This is a case where an owner appealed a cost award of $9,344 and won.

It started on 16 October 2014 with the corporation requesting entry to her unit so they could cut a hole in her bathroom ceiling to examine the common elements.

The owner made it clear that she would permit access but wished to be present during any inspection and repair work as she had bad experiences in the past when contractors came into her unit.
 
On 23 October 2014 representatives came to her unit to conduct the inspection but she was at work so no inspection was carried out.

Instead of communicating further with the owner to explain why access was required, the corporation filed a Notice of Application on 18 November 2014, to obtain a court order giving them permission to enter the owner's unit.

When the contractor cut the hole in the ceiling, he left a mess in her bathroom, damaged a door and said that he will leave the hole as is because a piece of plumbing piping needed to replaced.

The court ruled that the board should have done more to work out a solution with the owner instead of engaging premature legal proceedings.

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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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