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90 George Street Ltd. v. Ottawa-Carleton Standard 815, 2015 ONSC 336
Decision Date: January 16, 2015
This is an appeal of an arbitrator’s award. According to the Condominium Act, a condominium’s declarant (in this case the developer, 90 George Street Ltd.) must prepare disclosure statements for each purchaser, including a budget for the first year of operation. The declarant is responsible for covering the shortfall between the projected budget and the actual costs. Audited financial statements for OCSSCC 815’s first year showed a shortfall of about $115,000. Mediation was not successful so the dispute went to arbitration by the Honourable James Chadwick Q.C. He found in favour of the condominium corporation for the amount of the shortfall plus interest and costs. In this decision, Justice Smith upheld the arbitrator’s decision, including the decision to award costs on a substantial indemnity basis, noting that OCSCC 815 made two offers to settle (for less than they were awarded) before arbitration.
1420041 Ontario v. 1 King West, 2015 ONSC 252
Decision Date: January 27, 2015
This is a decision on a summary judgment motion, with parties agreeing that summary judgment is appropriate. In 2000-01, the plaintiff purchased 8 units in Toronto Standard Condominium Corporation 1703 from the defendant. In 2005, dissatisfied with construction of the common elements, as well as with elements in its individual units, the plaintiff commenced an action against 1 King West. In 2005 TSCC 1703 commenced its own action against 1 King West (and other defendants) on behalf of itself and the individual unit owners, seeking damages of about $16 million. This action settled in the summer of 2011. TSCC 1703 agreed to release 1 King West from “any and all” claims made in the action, in respect of any and all construction deficiencies, etc. (In the meantime, there was some legal “back and forth” regarding the plaintiff’s 2005 claim. Their claims regarding the common elements were struck, on the grounds that only a corporation can bring claims for damages to common elements. The claims regarding the individual units were allowed to go ahead.)
The issue now before Justice Firestone was whether the release in the action brought forward by TSCC 1703 precludes the plaintiff from pursing its own action (commenced back in 2005). He found that it did not. The settlement entered into by TSCC 1703 should not be interpreted as releasing the rights to a separate action, unique to an individual unit owner. The corporation protects the interests of unit owners as a whole, not their interests as individuals.