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Damage to the common elements

Damage to Party Room sofa
Tenant damages common elements—owner gets sued

Altaleb  vs  Goldview Property Management Ltd and PCC No. 485
Goldview Property Management Ltd. and PCC No. 485
Radwan Altaleb, Leena Altaleb, Robert Novak and Zlata Stephanie Novak
Small Claims Court,  Brampton
Docket: SC-15-005425-00; 485; SC-15-005425-D1
Before: M. Klein, Deputy Judge
Heard:  16 June & 19 September 2016
Released: 30 January 2017

The Facts
Mr. Altalb and his wife (Leena) are tenants in a condo apartment located at 135 Hillcrest Avenue, suite 2214, in Mississauga, Ontario, owned by Robert Novak and Zlata Novak.

The facts were fairly straightforward:
The Altalebs booked the party room in their building to hold their daughter’s birthday party on April 20, 2014.
The standard $500 security deposit was paid.
About a dozen women and children attended.
There was a pre-inspection of the room on April 20, 2014 at 2:41pm and as it appears (possibly) two post-inspections of the room – one, as stated by Leena Altaleb on April 20, 2014 at about 11:00 pm and the other on April 21, 2014 at 10:10 am, as reported by Goldview.
Leena Altaleb told the court that during the event, mostly the adults used the sofa in the room, while the children ran around and played throughout the rest of the room.
Following the party, later that evening, Mrs. Altaleb summonsed the security guard to do an inspection of the room, to ensure everything was in order; noting that the room was in order and no damage was done anywhere in the room. She states that she was given the okay and apparently it was noted in some form of report which Mrs. Altaleb indicated she saw, but was never given a copy of. This particular report was never produced in evidence.
The Altalebs state that they received a “no damage” clearance on both their inspections – that is before and after the party.
The next day (April 21, 2014), Mrs. Altaleb attended the management office and the $500 damage deposit was returned to her. This was in error, according to the defendants, who apparently had inspected the party room that morning and discovered that the sofa was ripped.
The Altalebs were accused of causing this damage and almost two months later, on June 13, 2014, Goldview sent a demand letter to Mr. Altaleb (cced to Novak) indicating that the sofa could not be repaired and that it had to be replaced at an estimated cost of $9,998.
Several letters flowed from the management office and two of its solicitors to the Altalebs. All went unanswered and payment was never forthcoming.
On July 24, 2014, the Altalebs were advised that their party room rental privileges were suspended until further notice. (The payment for the sofa was now at $10,619.50).
Matters did heat up with allegations reported by Goldview, of the harassing behaviour by Leena Altaleb at a Goldview agent on August 20, 2015. In consequence of the alleged behaviour, effective that date, the Altalebs were banned from the use of the building’s facilities. This “ban” was lifted on February 16, 2016.

Then there was an additional issue. in mid-July 2014, the plaintiff alleged that the hood of his automobile had sustained “irreversible damage” in that it was discoloured from some form of liquid leaking onto it from an overhead sprinkler pipe in the garage. The cost for repair was claimed to be $500. In response, the defendants offered Mr. Altaleb a car wash.

On August 19, 2015, the plaintiff issued his Claim totaling $2,700: $500 for the discolouration and $2,200 for being banned from the use of the building facilities between July 1, 2014 until July 30, 2015 ($200 per month times 11 months).

Defendents claim
The defendants then issued a Defendants’ Claim, seeking $9,980 as against the plaintiff and adding Leena Altaleb, Robert Novak and Zlata Stephanie Novak, for the replacement cost of the sofa. The court took note that the actual invoice for the cost of the replacement sofa, dated February 9, 2016, came in at $6,207.09, HST included.

The court had several concerns with respect to the evidence in both of these proceedings:
With respect to the Defendants’ Claim, the amount should be $6,207 and not $9,980 which reflects the correct/actual price of the replacement sofa. (It is noted that the sofa was replaced after the Defendants’ Claim was issued on October 5, 2015.)
The on-site manager told the court that he took photos of the torn sofa, but could not recall the exact date, having not marked the prints. He did state that the photos were taken sometime in 2015.
On April 20, 2014, the subject sofa was far from new. The court was given an estimate of its purchase date being in 2008 or 2009; making it five or six years of age at the time of the alleged damage. We were also told that the sofa did remain in the party room until it was replaced in February 2016. So, in effect, the Corporation is asking the defendants by Defendants’ Claim to pay for a new sofa when it already had six or seven years of use.
"Having heard the oral evidence of Leena Altaleb, contrary to the defendants’ submissions, I find that Mrs. Altaleb was forthcoming in her evidence pertaining to the substantial issue in this case; that being the damaged sofa. And, although I cannot say that the defendants’ witnesses were untruthful, I have serious concerns in the way in which the facts unfolded as were related in their evidence. I have no reason to accept the defendants’ evidence over that of the plaintiffs and vice versa."  

The condo's evidence
"For want of a better word to describe the “gathering of evidence” – I find that it was somewhat of a “botch;” from the peculiar absence of the security camera taping, even after a request to turn the cameras off was denied; from the undated photos of the sofa taken sometime in 2015; from a missing post-inspection report taken that night, after the party and even this “error” in returning the $500 deposit. I am therefore not convinced, beyond a preponderance of evidence that the defendants have proven their case."

Mr. Altaleb's evidence

Damages for being banned from the facilities, no evidence offered on how he came up with the $200 a month.

The $500 claim for car damages. No evidence given to back it up.

The judge wrote:
"I might add that offering the plaintiff a car wash was really not the most efficient manner to take care of this conflict and in fact, an insult and very poor judgment on behalf of the defendants."

Both claims dismissed with no costs awarded.


YRSCC No. 1253 v. Hashemi
Court of Appeal for Ontario
Docket: C62479
Rouleau, Pepall and Roberts JJ.A.
Heard: March 23, 2017

On appeal from the judgment of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated 30 June 2016.

YRSCC #1253 is a two building 479 unit condo complex at 75-95 North Park Rd in Vaughan. It was registered in 2014.

YRSCC #1253 appealed an award of $18,000 in damages made in its favour against the unit owners and also sought leave to appeal an award of $17,000 in full indemnity costs made under s. 134(5) of the Condo Act.

The respondents leased their condominium to tenants who vandalized the condo's common elements.

YRSCC #1253 commenced an application against the respondents and their tenants seeking an eviction order, damages representing the cost of repairs, and legal costs.The tenants left the property. The respondents conceded liability and only contested the claimed $33,381.28 in damages and $52,637.56 in costs.

Application Judge’s Decision
The application judge considered the invoices submitted to be disproportionate to the damage suffered. Unit owners should be charged for repairs, not upgrades. Although YRSCC #1253 was entitled to rectify the damage, it had a duty to do so proportionately. He therefore awarded $18,000 in damages rather than $33,381.28 claimed.

He then turned to the issue of costs. The application judge awarded $17,000.

a.) Damages
The damages claimed clearly was in issue. The application judge’s role was not to simply rubber stamp the request made by the condominium corporation. In support of his determination, he identified compelling examples of disproportionate expenditures.

However, the judges found that the application judge erred in finding that the installation cost of security cameras was unreasonable. He concluded that two invoices, each for $7,458, were duplicates and unreasonable. But, the affidavit evidence revealed that the contractor had split the total cost of his services between two invoices and did not charge twice for the same service. The expense of $7,458 therefore should be added to the condo's damages award.

Apart from this adjustment, they saw no reason to interfere with the damages award.

b.) Additional Actual Costs
Turning to the issue of the costs award, there were two dimensions to the request for costs. First, the condo corporation claimed the costs of the application based on r. 57 of the Rules of Civil Procedure. Second, it claimed its additional actual costs based on s. 134(5) of the Act. The latter provides that “[i]f a corporation obtains an award of damages or costs in an order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit”.

The application judge considered an order of $12,000 to be an appropriate partial indemnity cost award under r. 57 and ultimately ordered an additional $5,000 under s. 134(5) of the Act for a total full indemnity cost award of $17,000.

The application judge considered YRSCC’s “full indemnity” costs but appears to have focussed on the costs as between the parties without reference to the additional actual costs. In his analysis, the application judge should have distinguished between “an award of costs” and “additional actual costs”, as stipulated in s. 134(5), and as this court explained in Skyline and Baghai. Instead, he conflated the two.

YRSCC did not file the necessary underlying evidentiary materials

However, YRSCC did not file the necessary underlying evidentiary materials supporting the claim for all of its additional actual costs and did not seek an adjournment to address this deficiency in the record. The burden is on the condo corporation to demonstrate that the costs claimed were actually incurred in obtaining the order. YRSCC did not fully meet this burden. As this court observed in Baghai, at para. 84: “the provision for ‘additional actual costs’ does not automatically lead to whatever amount is claimed” because s. 134(5) “does not give counsel licence to spend the client’s money with impunity”.

Of the $52,637.56 claimed for costs, YRSCC established entitlement to approximately $34,000. In the result, the order on costs is varied and increased from $17,000 to $34,000 so as to account for actual additional costs established by YRSCC.

In summary, the appeal was allowed and the damages award increased from $18,000 to $25,458. The costs award was increased from $17,000 to $34,000.

As YSSRC was the successful party on this appeal, the respondents shall pay its costs fixed in the amount of $9,500 inclusive of disbursements and applicable taxes.

The condo corporation won this appeal and received additional costs. Yet it did not come out whole as it is still short $26,560.84 in claimed damages and legal costs. The condo owner, and landlord, came out far worse. He has to pay the condo corporation $68,958 plus his own legal fees so he has to be out roughly $100,000. Impossible to tell how much of this he can recover from his ex-tenants.