Court cases—owners vs owners

It is not common for a condo owner to sue other condo owners but it does happen.

An owner can't be the condo corporation
Condo owner sues seven owners for defamation
Man sentenced to life in prison for ‘senseless’ murder over noise complaint
Omotayo v. Da Costa

Iu v. Rabinovitch
The Supreme Court of British Columbia
Citation: 2014 BCSC 1067
Docket: S-136440
Before: The Honourable Mr. Justice Melnick
Date of judgment: 13 June 2014

The petitioners claim that the respondent has altered without authority, and failed to maintain, the common property of the strata complex, of which they are the only two owners.

The petitioners and the respondent each own one-half of a duplex building which is a strata lot (condo corporation). A number of portions of the property, such as all the yards surrounding the building, and the roof of the building, are common property. The parties have been owners of their respective units for over 20 years. However, they have never formally set up a strata council (board of directors).

The parties each initially occupied their units. However, since 2007, the petitioners have rented their unit to tenants.

Initially, the parties “managed” their common issues by simply communicating with each other informally. However, since the petitioners have no longer resided in their unit, they say that the respondent has taken advantage of their absence to radically change the landscaping around the building that houses their two residences to essentially exclude them from access to a substantial part of the common property. The respondent is treating the common property, they allege, as a traditional duplex rather than a strata lot.

There are other complaints such as the installation by the respondent of a skylight above her unit, which, they allege, is not properly finished and may be the cause of leaks. They also wish a tree planted close to the house by the respondent removed and complain about the size of a shed constructed by the respondent as well as her storage of “junk and debris”.

Legal basis
It will be noted that none of these sections give the authority to a unit owner to bring an action against another unit owner as has been done here.

The petition uses language such as “The Petitioners acting as the strata corporation…” in setting forth the legal basis for the relief sought by the petitioners. But the petitioners have not taken the steps necessary to enable them to cause the strata corporation to apply for relief sought pursuant to the Act.

That said, there is authority for the petitioners to bring this proceeding in their own names or to make the strata corporation the petitioner.

The petition may not proceed in its present form. The petitioners have leave to amend the petition which shall be filed and delivered to the respondent within 21 days. The respondent shall then have 14 days to respond and the petitioners seven days to reply.

The respondent is entitled to her costs thrown away to date on Scale B in the cause.


Fortunato v. Khan et al
Ontario Superior Court—Toronto
File: CV-10-411655
Before: Justice Stinson
Released: 19 July 2013

In 2010, a court-appointed administrator was directing York Condominium Corporation # 42. There was an election being held to elect one position to the shadow board of directors.

Mr. Fortunato endorsed one candidate while Mr. Khan and the others were working on behalf of another.

In late June and early July 2010, a series of flyers, letters and notices were distributed and posted throughout the condominium property. These flyers and notices libeled Mr. Nicoló Fortunato by containing false, derogatory and malicious statements.

Originally Mr. Fortunato, (acting on his own behalf throughout the proceeding, from the issuance of the statement of claim to the conduct of the trial), sued seven residents of YCC #42 and he settled and discontinued the claim against six of them prior to the commencement of the trial.

Derrick Fulton represented the seven defendants but just before the start of the trial, Mr. Shah Jahan Khan served a Notice of Intention to act in person.

In the judge’s view, some of Mr. Khan’s testimony was not credible and that the testimony of Mr. Fortunato was more reliable and credible.

The judge ruled that the flyers and notices libeled Mr. Fortunato and that Mr. Khan wrote and distributed at least some of them.

Justice Stinson awarded Mr. Fortunato $30,000.00 in damages. He also encouraged the parties to agree to costs and if they could not, he would accept written submissions.


Man sentenced to life in prison for ‘senseless’ murder of woman over noise complaint
Toronto Star
By: Alyshah Hasham
05  June 2014

For a year Peter Gulyas had complained about loud music from the apartment below him to the super, the condo board and even the city.

No one else in the Scarborough highrise corroborated his complaints, and investigations by the super discovered nothing.

He became fixated on noises from the apartments both above and below him.
On the evening of Aug. 7, 2012, Gulyas reported once again to the superintendant that loud music was coming from the apartment below him, where Robin Jenkins, 29, lived with her common-law husband Fariq “Steve” Hausain and their two young boys.

The super told Jenkins about the complaint — though he did not notice her music being loud — and she complained that Gulyas banging on the ceiling was scaring her children.

Frustrated with what she considered false accusations, Jenkins eventually stormed up to Gulyas’s door, where she was seen yelling and waving her hands.

It was the last time she was seen alive.

On Thursday, Gulyas, 37, was sentenced to life in prison with no chance of parole for 14 years, for murdering Jenkins in a way that can only be described as “savage and brutal,” Superior Court Justice John McMahon said in his decision.

“This is one of the most senseless murders I have encountered. Robin Jenkins lost her life over a senseless argument over whether her music, a floor below the accused, was too loud or not.”

Gulyas strangled Jenkins into unconsciousness; then, while she was still breathing, slit her throat and slashed her wrists to the bone, McMahon said.
This is not the case of a mutual struggle, noted McMahon. Gulyas had no injuries apart from a few small scratches, he said.

He was “exceptionally brutal and methodical.”

A short time after the killing, Gulyas called 911. “He told the operator in a calm, controlled voice to send the police to his address about some event and that there would be no need for an ambulance,” McMahon said.

The officers arrived to find Jenkins’ body lying face-down in the hallway and Gulyas standing calmly by, with no blood on his person except for his toe, McMahon said.

In both Gulyas’s jury trial, where he was found guilty of second-degree murder, and his sentencing hearing, no reason or explanation has ever been given for why Gulyas killed Jenkins.

The lack of an answer still haunts her family.

“I would like to know, but I will never know,” Hausain said outside the courthouse. “He will never say.”

Their 6-year-old son wrote in his victim impact statement: “I miss my mom all the time. Why did he kill my mom?”

Gulyas, who emigrated from Hungary in 1994, worked steadily as a carpenter and owned a maintenance company. He was fined in 2002 for two counts of threatening, but has no other criminal record.

He has never shown regret or remorse for killing Jenkins and listened “dispassionately” to the victim impact statements, McMahon said. He declined to make a statement to the court during his sentencing hearing.

“I wish he would apologize to at least somebody, but he hasn’t even said a word. He looked like he didn’t care,” Hausain said, tears in his eyes.
A smile came over his face as he recalled first meeting Jenkins, through a friend.

He knew when he saw her she was the one, he said.

They were together for 14 years.

“She was a wonderful person,” he said. Their boys, now 6 and 7, “miss everything about her.”

In his victim impact statement he said: “Whenever they see a robin they say: ‘There is Mommy. She is watching over us.’”


Omotayo v. Da Costa
Superior Court of Justice—Ontario
File number:  CV-13-490035
Before: Justice Nishikawa
Date: 29 March 2018

Jacqueline Omotayo sued Jose Da Costa and MTCC 1292. Both defendents were represented by council while Ms. Omotayo did not appear.

MTCC 1292 asked for a summary judgment dismissing Jacqueline Omotayo's claim for failing to protect her from an assault by the other defendant, Jose Da Costa, at a MTCC 1292 Board meeting. Ms. Omotayo agreed to drop the condo corporation from her claim.

However, Jose Da Costa, opposes the motion for summary judgment because he has a crossclaim against MTCC 1292 for contribution and indemnity.

(In other words, Mr. Da Costa claims that the condo corporation is partially at fault for him hitting Ms. Omotayo with a chair.)

The claim arises from an assault that took place on October 4, 2011 at a meeting of the MTCC 1292 Board. At the meeting, Ms. Omotayo, the ex-board chair and Mr. Da Costa, the ex-president began to argue. Mr. Da Costa struck Ms. Omotayo on the head with a chair.

The police were called, and Mr. Da Costa was charged with three offences.  He received a conditional discharge for the charge of assault with a weapon, and the other two charges were withdrawn. Mr. Da Costa admits that he struck the plaintiff.

The condo's position
MTCC 1292 argues that it was not reasonably foreseeable that a meeting participant would assault another participant during the course of a Board meeting. MTCC 1292 offered the following evidence:

the Board met 30-40 times in the previous year, and there were no previous incidents of physical violence or threats of physical violence at those meetings;

at no time before the incident did the plaintiff claim that she felt threatened;

no one else ever expressed a concern about their personal safety at a Board meeting or that behaviour of the participants had become potentially dangerous or violent; and

there was never any request to arrange for security for a Board meeting.

MTCC 1292 was successful in getting a judgment dismissing Ms. Omotayo's claim against the corporation though her claim against Mr. Da Costa can proceed.

The judge fixed costs at $6,500, inclusive of disbursements and HST, payable by Mr. Da Costa to MTCC 1292 within 30 days.

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