contents  chapter  previous  next

Board vs owner because of tenants

NNCC No. 6 v. Temideo, 2017    Part 1
NNCC No. 6 v. Temideo, 2017    Part 2

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 areas.

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.

Condo living
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.

On 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 rules."

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.

The 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 compliance issues. 

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 $3,284.87.

Legal fees for court application
Second, legal fees from a successful compliance application brought by NNCC No. 6 against Ms. Temedio under the Condominium Act.  

The condo claims $52,000 for these fees. Ms. Temedio’s sole argument in support of special circumstances is that the accounts appear excessive. 

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.

On 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.

Given 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 associated with 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.

Final issue
The request to have the assessment transferred to Toronto was denied.

My take on this
Ms. 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.