Condo Law Digest – March 2014

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Butala v. Xia and Chen, 2014 ONSC 932
Decision Date:  Feb 11, 2014

This is an appeal of a small claims court decision.  Xia and Chen live in the unit directly above Butala’s.  In a small claims court decision Deputy Judge J. Hunt awarded damages of  nearly $7000 plus costs to repair water damage to the floor in Butala’s unit.  (Liability was not an issue at trial.)  In this appeal, Xia and Chen submit that the trial judge committed “palpable and overriding” errors and that the decision should be over-turned.  These alleged errors concerned whether the entire floor would have to be replaced and on whether specific or generic products could be used as under pads.  In this appeal Judge Lederman found that the trial judge had broad discretion to admit evidence and that he had indeed based his conclusions on evidence. The appeal was dismissed and the plaintiff awarded costs in the amount $3500.

Comment: Neither party was represented at trial.  The plaintiff’s cost award suggests that she sought legal counsel.

Taite v. Carleton Condominium Corporation No. 91, 2014 HRTO 165 (CanLII)
Decision Date:  Feb 5. 2014

The applicant is a retired firefighter.  His work-related injuries, exacerbated by a subsequent car accident, mean that he has limited neck movement. He drives a Ford F150 truck which allows for good visibility and has been modified with additional mirrors to further enhance visibility.  The applicant also feels that the larger vehicle provides important psychological comfort, since it would provide better protection in the event of another accident.  Unfortunately the applicant’s truck does not fit into the condominium’s underground parking garage.  He requested an above-ground parking space as close as possible to the building’s entrance.  The respondents offered him an above-ground parking spot close to the entrance but the applicant said that it did not meet his needs (as other residents sometimes park there).  After a mediation-adjudication in November 2011 the applicant began using the parking spot, although the matter was not completely settled and the hearing proceeded.  Then followed over two years of procedural delays, adjournments for medical reasons, and allegations by the applicant of reprisals against him (vandalism to the truck and a mischaracterization of his human rights claim as a “lawsuit” at the condominium’s general meeting).

The adjudicator found that the application had no reasonable chance of success.  The applicant failed to establish that his choice of vehicle was more than a personal preference, and that another, slightly shorter vehicle would not have accommodated his disabilities just as well.  The vandalism against the truck, while unfortunate, and the condominium’s failure to ensure the applicant’s exclusive use of his aboveground parking spot, do not constitute “reprisal” under the Code.

Comment:  To establish a case of discrimination based on disability, it is not enough to show a disability-related preference.  To be successful, the applicant would have had to show that the particular truck he purchased was a necessity.

Talon International Inc. v. Jung & Long Ocean Holding Ltd., 2014 ONCA 137 (CanLII)
Decision Date: Feb 24, 2014

In 2005 the Respondents purchased units from the Applicant in the Trump International & Tower, Toronto, and a disclosure statement was provided to them.  They took delivery of the units at the end of February 2012, and on May 2012 they received a revised disclosure statement, outlining some changes to the premises.  According to the Condominium Act, a purchaser has two options upon receiving a revised declaration: He has ten days in which to 1) apply to Superior Court to determine whether the changes are material or 2) rescind the agreement of purchase and sale. The Respondents opted to rescind the agreement, but did so a full month after receiving the revised declaration.  In April 2013 Justice R. MacKinnon found in favour of the Applicant that the Respondents were bound by their 2005 agreement, that they had no entitlement to rescind that agreement, and that none of the changes outlined in the revised declaration were material. (See for the full text of the judgment.)

In the current action Jung & Long Ocean Holding sought to have Justice MacKinnon’s judgment overturned, and this appeal was dismissed.  Costs of $10, 700 were granted to Talon.