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Board vs owner
WCC No. 198 v. McMahon
Court of Appeal for Ontario
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
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
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
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
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.”
Vasilescu Tarko et al.
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
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.
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
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
This is important
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.
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
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
(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
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
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
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
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.
CCC # 28 was awarded $378.77. I estimate that the corporation's total legal costs could be between $40,000 and $50,000.
Limited (Venice Fitness) v. MTCC No. 1392
Court of Appeal for Ontario
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
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
Venice and the unit owners were successful on this appeal in obtaining
clarification of the order appealed from and received costs fixed at
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
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
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.
Ontario Superior Court of Justice
Court File No: 08-CV-41500/08-CV-41500A1
Heard: 26-28 February 2014
This case demonstrates two important points that condo owners need to
|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
This case also contained a warning
for the condo corporation and the contractor. Reading this warmed my
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
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.
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
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.
Plan No. 9910225 vs
Allen Davis and
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:
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
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.
is a disappointment.
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:
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”.
or permit the use of his residential unit other than as a single family
dwelling or for a purpose other than for residential purposes
Are the defendants
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
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.”
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.
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.”
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.”
wise and wonderful judgment. It makes me proud of Canada’s justice
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
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
File No. 07-CV-341144PD3
Darla A. Wilson
July 2008 (Costs)
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.
The McCauleys vociferously opposed the
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
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.
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
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
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 case against
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
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
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 McCauleys.
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
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
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.
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 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.