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Board vs owner because of tenants
NNCC No. 6 v. Temideo, 2017
Ontario Superior Court of Justice
Court File No: 56107/15
Before: G. E. Taylor
Date: 07 February 2017
Jean Temedio owns unit 511 in Niagara North Condominium
Corporation No. 6. Jean Temedio leases unit 511 to her daughter-in-law Kimberly
Watson who resides there with her 29 year old son, Robert James.
Robert James is the grandson of Jean Temedio. Robert James
suffers from health issues which result in him being unable to live
independently. Jean Temedio bought unit 511 specifically so
Robert James would have a home in which to live with his mother.
The condo board recived complaints from other units about loud noises and loud
voices, including profanity, coming from unit 511.
The Condominium seeks an order that Kimberly Watson
permanently vacate unit 511 or alternatively that there be an order
that she comply with the condo's declaration, by-laws and rules
and in particular that she refrain from causing undue noise.
Jean Temedio, the owner, has a separate application in which she seeks an order
that a lien for legal costs registered against unit 511 be vacated.
Between the fall of 2013 and September 2015, Kimberly Watson was in
violation of the rules of the Condominium by causing excessive noise by
way of making loud banging noises inside unit 511 and by shouting and
screaming obscenities both on the balcony of unit 511 and in the common
The position of the Condominium was that the sanction should be
eviction of Kimberly Watson and Robert James as tenants of unit 511.
It was the judge's view that an
eviction order against a tenant is a draconian and extreme order which
ought to be reserved for cases where there is an ongoing refusal to
comply with the rules of the Condominium. Such an order is not an
appropriate remedy, at this time.
Instead, the judge ruled that is was appropriate that there be an order requiring Kimberly
Watson to comply with the rules of the Condominium and an order
requiring Jean Temedio (the owner) to take reasonable steps to ensure that Kimberly
Watson does so.
Condominium living has many benefits. It also has obligations
such as living in harmony with one’s neighbours. Boards of
Directors of condominiums must recognize the rights and obligations of
the unit owners.
In the judge's
view, it is unfortunate that both sides to this dispute chose to adopt
confrontational positions. It would have been far more
appropriate had the Condominium simply approached Jean Temedio and
Kimberly Watson requesting their assurance that, in the future, they
would abide by the rules.
January 20, 2015, the Condominium registered a lean against unit 511
for legal fees in the total amount of $1,714.20. Jean
Temedio seeks an order for the discharge of this lien.
In the judge's view, the lien registered against
unit 511 arose out of the refusal on the part of Jean Temedio and
Kimberly Watson to address the unacceptable noise.
Vacate the lien
Jean Temedio was advised in at least
three letters that it was the intent of the Condominium to charge her
unit with the legal fees incurred in securing compliance with the
rules. Therefore, the judge would not vacate the lien.
Eviction of the tenants
The judge would not approve the eviction of the tenants. He ruled:
"A less heavy-handed
approach might very well have avoided an application to the
court. It was also open to the Condominium to apply to the court
for an order requiring Jean Temedio and Kimberly Watson to comply with
The Condominium was successful in obtaining an
order in this proceeding. The judge however had the discretion with respect costs.
In fixing costs, he took into consideration the amount of the lien which
has already been registered against unit 511.
costs of this application payable to the Condominium by Jean Temedio
and the Kimberly Watson, jointly and severally, were fixed in the amount of $2,500
inclusive of disbursements and HST. This amount shall be charged
to the common element expenses of unit 511.
Temideo vs NNCC No. 6, 2018
Ontario Superior Court of Justice
Court File No: CV-18-590302
Before: Justice H. McArthur
Date: 03 December 2018
The applicant, Jean Temedio asked for an assessment of legal
bills paid by NNCC No. 6, to their law firm. The fees Ms. Temedio wishes to have assessed all relate to legal steps
taken by NNCC in respect of a compliance issue. NNCC No. 6 is seeking
the actual legal costs it incurred.
The legal fees fall into three groups. First, legal fees
associated with letters sent to Ms. Temedio trying to deal with
Legal fees for letters
Between October 2015 and January 2015, the condo's law firm,
corresponded numerous times with Ms. Temedio concerning compliance
issues. NNCC No. 6
then added the legal bills to the unit's common expenses. Ms. Temedio refused to pay these charges and as a
result in January 2015, the condo registered a lien against Ms. Temedio’s
unit to secure payment. At that time, the lien was for
Legal fees for court application
Second, legal fees from a successful
compliance application brought by NNCC No. 6 against Ms. Temedio under the
The condo claims $52,000 for these fees. Ms. Temedio’s
sole argument in support of special circumstances is that the accounts
The judge disagreed as he states that at the time she should have known the legal costs. He stated:
"Indeed, her counsel urged the applications
judge to decline to issue a compliance order against Ms. Temedio
because it would open the door to full recovery of costs by the
condominium corporation under s. 134(5). In making that submission,
counsel for Ms. Temedio noted that the record before the court was
voluminous and speculated that the condominium corporation’s costs
might be approximately $50,000.
As it turns out, counsel
anticipated the fees spent by NNCC in the compliance application with
remarkable accuracy. It seems reasonable to conclude that counsel
for Ms. Temedio was able to estimate the legal costs of NNCC with such
precision because Ms. Temedio had somewhat equivalent costs."
So we are up to $100,000 plus the earlier $3,284.87.
Legal fees for the unsuccessful appeal
Finally there are the condo's legal fees from Ms. Temedio's unsuccessful
motion for leave to appeal the ruling on the
compliance application to the Court of Appeal.
February 1, 2018, the condo corporation sent Ms. Temedio a letter advising her that she
was responsible for the legal fees it had paid for the motion for leave
to appeal, in the amount of $29,588.48.
the concerns that have been raised by the comparison between the fees
charged for the compliance application versus the simplier motion for
leave, the judge ordered an assessment with respect to the legal fees
the motion for leave to appeal.
So it is possible these fees will be reduced.
Further, she seeks an interlocutory injunction preventing NNCC No. 6 from
enforcing a lien it has placed on her condominium in respect of the
legal fees pending the assessment.
She argued that if the injunction is not granted, that she will
have to sell her condominium unit. This, she argues, will harm
her daughter-in-law and autistic grandson who live in the unit as this would lead to severe emotional and mental
complications for her grandson. Ms.
Temedio did not file an affidavit from her daughter-in-law. Nor
did she provide any real details or expert information about her
grandson’s condition. Based on the record before me, I am unable
to find irreparable harm.
The motion for an injunction was dismissed.
The request to have the assessment transferred to Toronto was denied.
My take on this
Temedio tried to help her daughter-in-law and grandson by buying a
condo unit for them to live in. This was not a wise decision because
the owner is responsible for the tenant's behaviour.
When the first legal letter arrived, it was time to pay the bill and sell the unit.
Something happened between the first
Application by the condo corporation and this one. I don't know how a
$4,214.20 cost award became $52,000.