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Board vs owner

The hot tub stays

Limitations Act, 2002 – two years to commence an action

Wexler sues corporation in Small Claims for harassment    Part 1

Wexler wins an appeal on court costs                                 Part 2

Wexler has costs reduced to 15% of her claim                    Part 3


Condo changing arrears collection practices

Ex-president not paying his condo fees

Going to court unrepresented

A caretaker can live in single-family condo unit

Floor replacement—The president is not the board

Status certificates

What are the condo fees if there is an error in the status certificate?


Board harassing owners

WCC No. 198 v. McMahon
Court of Appeal for Ontario
Docket: C50328
Before: Goudge, MacPherson and Blair JJ.A.
09 December 2009

On appeal from the judgment of Justice J.R. Henderson of the Superior Court of Justice dated March 10, 2009.

The condo corporation took Mr. Jim McMahon  to Superior Court because he installed a hot tub on his exclusive use backyard patio without the board's approval. The corporation wanted the hot tub removed.

The hot tub is not an improvement as it does not increase the value of the condominium unit.  It is not a fixture that is so attached to the property that it becomes a part of the property.  Thus, it cannot increase the value of the property.

Justice Henderson concluded that a hot tub was not an addition, alteration or improvement within the meaning of s. 98(1) of the Condominium Act. The correctness of this interpretation is the principal issue posed by this appeal.

Mr. McMahon could keep his hot tub and was awarded $3,400 in costs.

The condo corporation appealed and lost.

The Appeal judges ruled:
"The equation of “addition”, “alteration” and “improvement” with “change” creates a result that is far too broad.  Barbecues, picnic tables, small inflatable swimming pools, children’s toys and thousands of other ordinary articles that are regularly found on backyard patios would constitute “changes” to the common elements of the condominium property under the appellant’s definition because they would “make different the pre-existing condition of the common elements”.

Indeed the barbecue analogy relied on by the respondent strikes me as particularly apt.  Both the barbecue and the hot tub are placed somewhere on the patio stones.  Both are connected in a limited sense to the condominium unit, the barbecue by a gas line and the hot tub by an electrical cable.  Yet, as the application judge observed, the condominium corporation has not required any owner to seek approval to install a barbecue on the patio common elements of the condominium property."

The condo lawyers were taken back by this decision. An article in Law Times stated:
A recent Ontario Court of Appeal decision has shifted the balance in the battle for use of common elements in condominiums, forcing a board of directors to pass a rule in order to ban the installation of hot tubs.

Harvin Pitch of Teplitsky Colson LLP, which represented McMahon, says:
“If you want to add ... to a common element [and] build on it, that’s one thing,” says Pitch. “If you want to put flower pots, barbecues, and hot tubs, that’s enjoyment of property. That’s not covered by the act, and so you deal with it in the rules.”


Valentina Vasilescu Tarko et al.  vs MTCC No. 626
Superior Court of Justice—Divisional Court
Divisional Court File No: 322/14
Before:  Frank N. Marrocco
              Associate Chief Justice of the Superior Court of Justice
Date:     13 February 2015

The condo owners commenced a Small Claims Court action against their condo on 28 June 2013. The appellants’ statement of claim discloses their complaints about the Board’s behavior.

A Deputy Judge of the Small Claims Court, relying on the Limitations Act, stayed the appellants’ claim because it was issued 25 months after the appellants knew about the board's actions. Their claim was too late.

They appealed that decision and lost.

What is interesting is why a group of owners sued their condo corporation.

The Renaissance Plaza is a mixed-use building that sits at the corners of Bloor Street, Avenue Road and Cumberland Avenue. The residential condos (MTCC 626) consists of 127 residential condo units that sit on top of a commercial building. Its address is 175 Cumberland.

The ten-story office and retail part of the building is a separate entity and is known as 150 Bloor Street West. That corporation owns the 120 underground parking spots.

So this 32 year-old building has ten stories of commercial space plus 127 condos and only 120 parking spots. Some condo owners had parking arrangements which by written agreement automatically renewed each year; other owners had monthly parking which could be terminated by either side upon notice.

Car parked on sidewalk at 175 Cumberland

The owner of the parking spaces terminated the parking arrangements for the monthly parking condominium owners. MTCC # 626 sued the owner of the indoor parking garage and lost. The board was hit with expensive legal fees which it decided to pay through a $7.00 per square foot Special Assessment.

The Board passed the special assessment by a resolution on 12 April 2011 and the owners received notice of the assessment on 15 April 2011.

The appellants disagreed with the Special Assessment. They circulated an  open letter to all the condo owners on 18 May 2011. In this open letter they questioned the Board’s diligence and skill in handling the parking dispute and the ensuing litigation. The appellants wanted the Board, among other things, to create a legal committee to review and oversee legal matters and their costs and to suspend the Special Assessment.

This is important
At the Annual General Meeting on 30 May 2011, the unit owners ratified, over the appellants’ objection, all of the actions taken by the Board of Directors for and on behalf of MTCC # 626 for the year ending 31 December 31 2010.

Court action
On 28 June 2013 the appellants commenced a Small Claims Court action against the condo corporation. The appellants’ statement of claim maintained that the dispute over parking was a private matter between the monthly parking condominium owners whose parking privileges were terminated and the owner of the parking garage.

The appellants objected to the board using the corporation’s money to finance what the appellants claim was a private parking dispute.

The appeal was dismissed. The parties agreed on costs in the amount of $5,000. On top of this, the appellants also had to pay their legal costs.


Wexler v. C.C.C. No. 28
Ontario Small Claims Court
Court File No: SC-12-121278
Before: Deputy Judge R. H. Gouin
Decision Released: 18 December 2015

Norma Wexler took her condo corporation to Small Claims Court claiming harassment and wanting payment of just over $500. Worse, she was self-represented. You can read a very good account on this case at
Lash Condo blog.

The owner had pigeons nesting on her balcony. The birds were making a mess which was falling down on the units below. The condo corporation demanded that she clean up the mess and install pigeon netting to prevent the birds from returning. This she did not do.

The condo hired a contractor who cleaned the balconies and installed the netting. The condo billed the owner for these expenses.

That is when the owner commenced her Small Claims Case claiming that the manager/board harrassed her.

The Judge identified four essential elements of the tort of harassment:

outrageous conduct by the defendant;

the defendant’s intention to cause emotional distress;

the plaintiff suffering severe emotional distress; and

the plaintiff’s emotional distress being caused by the defendant’s outrageous conduct.

The owner failed to convince the judge that she was harassed.

The owner lost and the judge ordered her to pay $20,000 of the approximately $35,000 in legal costs that the condo corporation occurred.
(How can a small claims case for just over $500 result in the corporation paying $35,000 in legal costs?)


Wexler v. C.C.C. No. 28
Superior Court of Justice—Ontario
Court File No: 16-2191
Before: Justice P. Roger
22 June 2016

Norma Wexler had more luck this time. She asked for a motion for leave to appeal the costs award to the Divisional Court from the costs order of Deputy Judge Raymond H. Gouin, of the Small Claims Court at Ottawa.

Rule 62.02(4) of the Rules of Civil Procedure provides that leave to appeal shall not be granted unless:
there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
there appears to the judge hearing the motion good reason to doubt the correctness of the Order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

The owner seeks leave to appeal alleging that Deputy Judge Gouin erroneously relied on Article X of the Condominium Corporation's Declaration, despite the findings of this Court in Pearson (Litigation Guardian of) v. CCC No. 178, contrary to s. 29 of the CJA.

For the reasons set out below, the motion for leave to appeal was granted.

A conflicting decision
Deputy Judge Gouin costs award depended largely on Article X of the condo's Declaration reasoning that it would be unfair that other unit owners should bear the costs of this litigation.

Article X makes no mention of legal costs. Here, the Deputy Judge was dealing with legal costs that seem to have no connection to the common elements such that his decision conflicts with the decision on this point in Pearson."

Matters of importance
"I find that the second branch of the test is also made out as it is desirable to grant leave to appeal as disputes of this nature, involving condominium corporations are frequently before the Small Claims Court and the proper interpretation of such provisions and their potential impact on costs awards, considering s. 29 of the CJA, reaches that threshold.

Further, I find that there is good reason to doubt the correctness of the Deputy Judge’s decision and that the appeal raises matters of general importance, considering s. 29 of the CJA.

The phrase “good reason to doubt the correctness of a decision” does not require a conclusion that the decision in question was wrong or even probably wrong. Nor does it require that the judge hearing the leave motion would have decided it differently had he or she been presiding as the motion judge. The test is whether the decision is open to serious debate.

I find that the decision of the Deputy Judge is open to serious debate. In exercising his discretion over costs, the Deputy Judge seems to have placed significant emphasis on irrelevant considerations. As indicated above, he indicates at paragraph 18 that he relies “essentially” on his finding that it would be unfair considering the condominium declaration. Section 29 of the CJA provides for an exception which does not incorporate such considerations. Consequently, there are good reasons to doubt correctness as the Deputy Judge appears to have exceeded his jurisdiction.

No submissions have been made on the issue of costs of the leave to appeal and these are reserved to the Court hearing this appeal."


Wexler v. CCC No. 28
Superior Court of Justice—Divisional Court
Court File No: 16-2223
Before: Justice M. O'Bonsawin
25 September 2017

Did Deputy Judge Gouin err when he issued his costs award against Ms. Wexler?

Section 29 of the Courts of Justice Act, R.S.O. 1990, C. C.43(“CJA”) provides a limit of an award of costs in Small Claims Court. Section 29 states as follows:
An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.

After having reviewed the legal framework, we must first review the Condominium Corporation’s Declaration X in this matter.

The Indemnification provision states:
Each owner shall indemnify and save harmless the corporation from and against any loss, costs, damages, injury or liability whatsoever which the corporation may suffer or incur resulting from or cause by an act or omission of such owner, his family or any member thereof, any other resident of his unit or any guests, invitees or licencees of such owner or resident to or with respect to the common elements and/or all other units, except for any loss, costs, damages, injury or liability caused by an insured (as defined in any policy or policies of insurance) and insured against by the corporation.

Declaration X is not applicable as there has been no loss, costs, damage, injury or liability suffered or incurred with respect to the common elements and/or all other units caused by an act or omission by Ms. Wexler.

Lastly, Deputy Judge Gouin also comments that he considered the principle of proportionality. This is an important principle to keep in mind when dealing with the costs of a Small Claims Court matter. However, it is not determinative of the issue since Deputy Judge Gouin did not provide any further reasoning as to his considerations. In fact, his decision to award such a large amount in an award of costs is not proportional to the amount claimed by Ms. Wexler.

Based on my analysis above, I conclude that Deputy Judge Gouin erred in awarding costs in the amount of $20,000 inclusive of HST and disbursements.

The appeal is therefore allowed and the award of costs is reduced to 15% of Ms. Wexler’s claim for $2,525.14 as per s. 29 of the CJA.

Consequently, I order as follows:
this appeal is allowed; and
Deputy Judge Gouin’s award of costs is set aside and replaced with an award of costs in the amount of 15% of Ms. Wexler’s claim for $2,525.14.

Bottom line
CCC # 28 was awarded $378.77. I estimate that the corporation's total legal costs could be between $40,000 and $50,000.


1349425 Ontario Limited (Venice Fitness) v. MTCC No. 1392
Court of Appeal for Ontario
Citation: 1349425
Document: C57600
Weiler, Lauwers and Pardu JJ.A.
Date: 17 April 2014

On appeal from the order of Justice Anne Mullins of the Superior Court of Justice, dated 15 September 2011.

Venice Fitness and the four registered unit owners appealed the summary dismissal of its claims that MTCC 1392 wrongfully registered liens against condominium units which it occupied to operate its business. Venice Fitness leased those premises from the owners of the units, being the four numbered corporations which are the other appellants.

The common expenses for the units were in arrears. While the owners of the units were legally responsible to make the payments, in practice Venice Fitness did so. Venice argued that the condominium corporation led it to believe, by adopting a long practice of tolerating late payments, that it would not rigidly enforce timely payment of the fees and would not charge interest; it was accordingly wrong to abruptly register liens without warning, especially after Venice Fitness tendered payment in full in the exact amount demanded by the condominium corporation, which was refused.

The condo fees in arrears have now been paid. The dispute remaining is the claim by the condo corporation for legal fees for filing and discharging the liens amounting to $30,597.58.

The motion judge dismissed Venice’s claim for “a declaration that MTCC No. 1392 wrongfully registered the liens…” on this basis:
“I find that the defendant’s conduct did not constitute such so as to raise a promissory estoppal nor was the defendant unjustly enriched.”

She dismissed the condo’s motion for summary judgment: “insofar as the claim for the legal expenses paid in relation to the lien registration,” and added: “There shall be a trial of that issue.”

The order dismissed the claim in para. 1(b) of the Statement of Claim, which sought a declaration that the condo “wrongfully registered the liens”. In the face of that language, Venice’s concern is that this dismissal forecloses the argument that the condo should not be able to recover any legal fees arising out of its conduct in registering the liens.

In oral argument the condo agreed that Venice could make this argument. The order made by the motion judge did not make this clear.

The appeal was therefore allowed to the extent of adding to the order a proviso that, at the trial of the issue of condo’s entitlement to reimbursement for the legal fees for registration and discharge of the liens, Venice and the unit owners shall be able to argue both entitlement and amount, and to raise the argument that because of the condo’s conduct the unit owners should not be obliged to pay the fees or that their obligations should be reduced.

The costs order of the motion judge awarding costs to the condo is set aside, and those costs are reserved to the discretion of the judge ultimately hearing the trial. The only issue in dispute before the motion judge was the issue of reimbursement of the costs of registration and discharge of the liens, and the outcome of the trial of that issue will have a bearing on determination of the costs of the motion.

Venice and the unit owners were successful on this appeal in obtaining clarification of the order appealed from and received costs fixed at $5,000.

The lessons here are that a condo corporation needs to act promptly when unit owners are in arrears. It also needs to inform the unit owners whenever it plans to change its normal business practices. So far this lesson has cost them $5,000 and potentially far more.


PCC No. 346 v. Florentine Financial Corporation
Ontario Superior Court of Justice
File number:  CV-17-4729
Justice Fragomeni
Date: 11 May 2018

PCC No. 346 is a four-unit commercial condo corporation.

The condo corporation commenced a small claims action against Florentine (Unit # 3) as the damages sought were less than $25,000. However, since then, the claimed damages have increased to $46,654.99 and were still climbing.

Mr. Shanawaz Khan is the owner and tenant of Unit # 3. He failed in his attempt to keep the application In small claims court.

Mr. Khan was elected president of the board and was appointed managing director. During Mr. Khan’s two and a half years on the board, he was exclusively in control of the corporation's financial records, bank accounts, and cheques.

On 30 March 2016, the other three members of the Board voted to remove Mr. Khan from the office of President. Within 30 days, Mr. Khan was to deliver to the new President the corporation records that he had in his possession.

Following a review of Peel’s financial records, Peel became aware that all four units were in arrears of their common expenses. As a result, the board demanded that all four units pay their outstanding arrears. This demand was made on 12 May 2016 and by 27 May 2016 all units except Unit # 3 had paid their outstanding common expenses in full.

Unit # 3 continues to be in arrears in the sum of $15,000 for the period 01 January 2014 to 01 March 2016.

The unit’s total outstanding common expenses as of 01 December 2017 is $46,654.99 and continues to increase due to the mounting interest on the arrears and legal costs.

Lesson to be learnt
A board, and the owners, should never leave a single person in charge of a condo's finances with no direct oversight.


Patriarcki v CCC No. 621
Ontario Superior Court of Justice
Court File No: 08-CV-41500/08-CV-41500A1
Justice Maranger
Heard: 26-28 February 2014

This case demonstrates two important points that condo owners need to heed.
Do not sue your condo if you have not received a legal opinion on the merits of your case. Better still, don’t go to court if you are not represented by a lawyer who has experience in condominium law.
Have hard evidence that proves your case.

This case also contained a warning for the condo corporation and the contractor. Reading this warmed my heart.   editor

A warning on costs
“I will accept one page of written argument on the issue of costs from each of the party defendants within 15 days of this release of this decision. Counsel representing the defendants should be alerted to the fact that the court is sympathetic to the various health difficulties suffered by the plaintiff.”


Hard-Surface Flooring in Upper Units—A Lesson in Selective Enforcement and Officer’s Authority
Association Alert
By Lydia Chartre
24 October 2018

A defense owners can raise if the Board claims the owner has violated the rules is “selective enforcement,” meaning the Board arbitrarily picks on some violators and not others. In addition, owners oftentimes like to rely on approval given by one board member, taking that as “Board approval” of the owner’s actions. The case below tackles both of these issues, in the context of a dispute over an owner’s installation of hard-surface flooring.

In a 2017 case, an owner who lived in an upper-level condominium unit replaced her carpeting with laminated flooring. The problem is, the Association’s Declaration prohibited the installation of any flooring other than carpet, without prior Board approval. The owner had not received approval from the Board prior to installation of the flooring, but she did allegedly have an email exchange with the Board president wherein he said it would be ok.

The owner below her unit complained to the Board, and the Board eventually filed a lawsuit seeking enforcement of the Association’s flooring restrictions, after some failed attempts at settlement. The owner contended that the Board only selectively enforced the flooring rule against 11 of the 94 units—but the evidence showed that there were only 11 units that were upper units, and there was no evidence that the Board failed to follow up on a complaint associated with noise from any of the units below upper units.

Court Rulings
The Court found that there was no selective enforcement by the Board because
the clear purpose of the flooring restriction was to avoid noise complaints;
the evidence showed that the Association consistently took enforcement action on the noise complaints submitted to it; and
the noise complaints only came from lower unit owners against the upper unit owners.

The Court also found that the owner was wrong to rely upon the president saying that she could install the floor, because the documents required approval by “the Board of Directors,” and not just one member.

This case provides a good example of how a court would analyze the defense of selective enforcement by an owner, and highlights the importance of the Board taking every complaint of a violation seriously and taking consistent action. While the court did not buy the owner’s defense that she relied upon the president’s statements, all board members should still take heed and remember to be clear in your individual communications with homeowners—if something requires “Board approval,” that means that the Board has to act as a whole.

If you have any questions, please feel free to contact the Husch Blackwell LLP Condominium and HOA Law Team.


Condominium Plan No. 9910225 vs
Allen Davis and Adelaide Davis
Honourable Justice R. G. Stevens
Medicine Hat Alberta
Docket: 1208 00285
Date: 23 Jan 2013

This court case, which involved an elderly and very ill couple having a full-time care taker live with them in their condominium unit.

The condo took then to court to have the caretaker kicked out because the bylaws said that the units were only for single-family use. The condo also wanted to collect a $10,000 fine.

Justice Stevens made several very interesting points including:

The Charter
Because condominium bylaws are in the nature of a contract between the owners of the units of the condominium, and because the Canadian Charter of Rights and Freedoms does not extend to “activities by non-governmental entities created by government for legally facilitating private individuals do things of their own choosing without engaging governmental responsibility”, the by-laws of the condominium corporation are not bound by the Charter.

This is a disappointment.

Human Rights
Justice Stevens also pointed out that the defendants could not find relief in Alberta’s Human Rights legislation.

Most likely they would have in Ontario.

The corporation’s by-laws are a contract among the owners specifying a manner in which they wish to coexist. They are entitled to make such a contract, particularly when made in good faith for a reasonable purpose, which was to protect what they undoubtedly believe is their enjoyment of their property and their quality of life.

Article 62(a)(iv) of the bylaws provides: An owner shall not:
iv. use or permit the use of his residential unit other than as a single family dwelling or for a purpose other than for residential purposes
“Single Family Dwelling” is defined in the by-laws as “a unit occupied or intended to be occupied as a residence by one family alone and containing no more than one kitchen and in which no roomers or boarders are allowed”. The terms “roomer” and “boarder” are defined identically in the by-laws, to mean “a person to whom room and board is regularly supplied for consideration”.

Are the defendants doomed?
Article 65 of the by-laws is entitled “Declaration of Purpose”, and provides:

The restrictions in use in these bylaws have the following purposes:

To provide for the health and safety of condominium occupants;
To maintain the residential Units, parking units and common property units in such a manner as to preserve property values;
To provide for the peace, comfort and convenience of the owners and occupants;
To develop a sense of community

The judge went on to say: “The parties did not provide me with any authorities that would illuminate whether, as a general proposition, live-in caregivers, maids or nannies fall within the category of roomers or boarders. I am not aware of any decisions in this province or indeed in Canada wherein the issue has been decided. In the absence of binding or persuasive authority, I am left with the general principles of interpretation.”

Today there is only one principle or approach, namely, the words of the Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

“Article 65 of the bylaws is what is known as a “Purpose Statement”, and though the assistance purpose statements provide in interpretation is limited, the modern approach to interpretation, with its focus on the entire scheme of the legislation or contract, requires that the purpose statement be considered as a part of the context for the more specific provisions contained in Article 62(a)(iv) and the definitions of roomers and boarders.”

“It is after considering the Condominium by-laws as a whole that I conclude that the presence in a unit of a live-in caregiver, who is required to provide necessary assistance to infirm residents, does not mean the unit is “being used other than as a single family dwelling or for a purpose other than for residential purposes. …such a prohibition could be devastating to the unit holder in need of medical care. I simply cannot reconcile a prohibition against live-in caregivers with the stated purposes of the bylaws.”

What a wise and wonderful judgment. It makes me proud of Canada’s justice system.


1716243 Ontario Inc. v. MSCC No. 54
Ontario Superior Court of Justice
Barrie Court File No: CV-13-0816
Justice C.A. Gilmore
Date: 24 March 2014

The numbered company purchased a condo unit on 21 February 2012, known as 130 Steamship Bay Road, Gravenhurst, Ontario. The property included two parking units.

The status certificate said that the monthly common element fees were $804.04. That was the correct figure for the condo unit but the condo corporation forgot to add in the common element fees for the two included parking spots. So the true figure should have been $1,012.83 a month.

As the status certificate was issued on 10 November 2011, it bound the corporation for the fiscal year ending 31 March 2012.

The purchaser, the numbered company took the position that since the status certificate said it had to only pay common element fees for the actual unit and not the two parking spots, that is all they were going to pay indefinitely.

On 18 January 2013, the condo corporation issued a notice of lien in accordance with the Act, which indicated that the amount owed to it was $6,944.99 and that if the amounts due and owing were not paid within ten days it would register a condominium lien. On 31 January 2013, the corporation registered the lien.

So to court they went.

The judge ruled that the purchaser had to pay only $804.04 a month for the remainder of the fiscal year in which the status certificate was issued and that the purchaser would have to pay the correct common elements for both the unit and the two parking spots after that.

The judgment states: So long as the numbered company pays this amount within sixty days of the date of this judgment the lien shall be discharged without interest.

In the judge’s view neither party had significant success. The numbered company is required to pay the additional common expenses, both arrears and ongoing, for the two parking spaces and the condo corporation was unsuccessful in obtaining the full amount of the lien which they sought to enforce. (They wanted the full
$1,012.83 a month from the very beginning.)

He left it to the two sides to determine costs. The costs were no joke as the condo corporation spent over $30,000 by the time it got to court. If the two sides could not agree, the judge would decide costs.


TSCC # 1510 vs McCauley
Court File No.  07-CV-341144PD3
Justice Darla A. Wilson
Heard:  08 June 2008
            10 July 2008

This application was issued 03 October 2007 against the respondents, J.W. McCauley and Anne McCauley, who are owners of a condo unit in the corporation.

The application seeks a variety of relief: an order requiring the respondents to comply with the Condominium Act, 1998 (“the Act”) and the Declaration, By-laws and Rules of the condominium; a declaration that Ms. McCauley violated sections 27(1) and 116 of the Act and must reimburse the applicant $1,155.60; a declaration that Mr. McCauley violated sections 226 and 117 of the Act and must reimburse the applicant the sum of $6,300.00 in damages; and costs.

McCauleys vociferously opposed the application.

Claims against Anne McCauley
The applicant asserts that Ms. McCauley violated s 27.1 of the Act which states that a Board of Directors shall manage the affairs of the corporation.

The basis for this argument is the allegation that in April of 2006, Ms. McCauley instructed the landscaper at the condominium concerning some plants and she did not have the authority of the Board to do so.

Further, repayment of the sum of $1,155.60 is sought from this respondent for an invoice rendered by the landscaper in June of 2006 for six summer planters.

McCauley denies giving instructions to the landscaper in April of 2006 with respect to plantings and states that while on the House Committee in 2005 she was involved in the winter plantings at the condominium and provided instructions to the landscapers at that time.

In support of her denial, Ms. McCauley deposes that she contacted the landscaper to have her attend at a Board meeting to confirm that Ms. McCauley did not instruct her in April of 2006 concerning plants for the condominium but the Board did not accede to this offer.

Ms. McCauley testified that she spoke with the landscaper in the spring of 2006 about obtaining some plants for her own unit.

There is no evidence upon which a court could find that Ms. McCauley instructed the landscaper about the planters in April of 2006. If that is the evidence from the landscaper, Ms. Yang, it is curious that there is no sworn evidence from that individual given the denial by Ms. McCauley.

It is further alleged that Ms. McCauley violated the Act by making unauthorized use of the common elements in various ways: hanging a Christmas wreath on her door; leaving her shoes outside of the door to her unit; allowing a worker to leave his equipment outside the door to her unit; and entering the concierge area without first obtaining written permission.

Ms. McCauley deposes that she left her shoes outside her unit for a short period of time once or twice in 2005; that a contractor she hired once left some equipment in the hallway for a very brief period of time and that when she became aware of it, she immediately instructed him to move it; that she hung a wreath from her door in 2004 and 2005 as other residents did, and there were no complaints at the time; that she stood in the door of the concierge area to check the positioning of the surveillance cameras.

With respect to the claims made against Ms. McCauley, the condo has failed to garner the necessary evidence to support the allegations and the application must fail.

Even if the judge accepted the thin evidence offered by the applicant against Ms. McCauley, which she did not, she would not find that the alleged conduct amounts to violations of the section 116 of the Act or constitutes unreasonable use of the common elements as contemplated by the Act.

The case against Mr. McCauley
The allegation against Mr. McCauley is that he breached sections 116 and 117 of the Act by carrying out an activity which caused damage to the property.

This allegation is rooted in the suspicion that Mr. McCauley attended in the change room on the second floor on 28 January 2007 and dyed his hair, which caused damage to the tiles, floor, sink, walls and toilet doors.

Just suspicions
Counsel for the condo conceded that at most, the evidence linking the respondent to this activity was circumstantial. There was no eyewitness to it and Mr. McCauley in his sworn affidavit denies dying his hair in the change room on that date or at any other time. He acknowledges that he used the exercise room, showered and left.

The allegations against Mr. McCauley are serious and yet, the evidence put forth to support them by the corporation is, at best, characterized as a suspicion.

The facts giving rise to the relief being sought are hotly disputed.  It should have been clear to counsel for the condo after delivery of the responding affidavits, or at the very latest after conducting the cross-examinations, that the application had virtually no chance of success. 

Taking the evidence as a whole, the judge was not satisfied that the applicant has discharged the burden of proof on a balance of probabilities and consequently, this application failed.

The application is dismissed with costs to the

Counsel for the McCauleys argued that costs ought to be on a substantial indemnity basis because the application was launched as a retaliatory measure against them. Further, the condo corporation ought to have concluded the chances of success on the application were remote.

Finally, it is submitted that the condo corporation ought to have accepted the McCauleys’ offer to settle of 08 May 2008, wherein if the application were dismissed without costs and releases exchanged, the McCauleys would not demand costs.

In response, counsel for the condo argues that there is an obligation on the corporation to manage the affairs of the condominium and to enforce compliance with the Act which is why the application was launched.

Further, the condo corporation submits that they made an offer to settle. If the
McCauleys would give the condo $5,215.20 and had that been accepted, they would not have incurred the additional legal fees necessitated by the arguing of the application.

Judges opinion
The condo should have accepted the offer to settle made by the McCauleys on 08 May 2008. To persist with the application was ill-advised. Further, the condo’s offer to settle for payment by the McCauleys the sum of $5,215.20 was completely unrealistic.

The award
The judge awarded costs of $16,058.77 to be paid by the condo to the McCauleys within 30 days. This figure is comprised of partial indemnity costs up to the time of the offer to settle of 08 May 2008 ($4,129.59) plus costs on a substantial indemnity basis thereafter ($10,225.95) as, in his view, once materials were delivered and certainly after the cross-examinations were complete, the condo corporation should have abandoned the application.

The applicant chose to persist with the application and must bear the costs this decision. With respect to disbursements, the judge fixed them at $1,703.23.