Condo Law Digest – December 2015

The fireplace-RS.jpgMetro Toronto Condominium Corporation No. 634 v Adamo, 2015 ONSC 6730
Decision Date: October 30, 2015

This is a dispute over costs of enforcement. All owners of units with fireplaces in MTCC No. 634 were required to bring their fireplaces into compliance with fire regulations. Mr. Adamo resisted, arguing that the problem was caused by the corporation’s failure to perform annual maintenance. He told the Board that they would have to obtain a court order if they wanted to make him fix the problem.

The corporation asked for partial indemnity costs in the amount of $30,000 (which included disbursements and HST.) Judge Corbett awarded costs of $9000. He reasoned that the Mr. Adamo “had only himself to blame” that the Corporation had incurred costs and that the Board showed “real patience” with him before initiating litigation.  On the other hand, the Board is entitled only to the costs reasonably necessary for litigation, not for costs related to the extra-litigation attempts to solve the problem.

Comment: Another case where an owner seems not to have sought legal advice (Mr. Adamo was unrepresented in this action) and as a result the dispute has been longer and more expensive than necessary.

Chen v. Del Property Management Inc., 2015 HRTO 1512
Decision Date: November 10, 2015

Mr. Chen has owned a unit in MTCC 901 for five years. In October 2013 he began to be bothered by a loud thumping noise coming from the unit above. It would bother him during the day and awaken him at night. He complained to the property management company and was told that the tenant of the suite above had suffered a leg injury and could move only by using crutches or hopping around. Allegedly one of the property management’s employees told him there was nothing they could do to solve the problem. Then followed more complaints, a letter to the Board, calls to police, and more stress and sleepless nights for Mr. Chen. In February 2015 the property management company, in an effort to resolve the problem, scheduled a noise test by an acoustic engineer; Mr. Chen declined to cooperate.

In this application to the HRTO, Mr. Chen claims that he has a disability, that this disability was made worse because the noise prevented him from sleeping, and that the property management company has discriminated against him by refusing to address his complaint. The adjudicator dismissed the complaint because it is not within the property management company’s power to have the offending occupant removed or to otherwise enforce a solution.

Comment: I suspect that an attempt at mediation in the very early stages of this dispute would have saved the parties time and aggravation.

Seto v Peel Condominium Corporation No. 492, 2015 ONSC 6785
Decision Date: November 12, 2015

This dispute, settled by an application, is between PCC 492 (known as Dixie Park Mall) and three owners of units in the Food Court. The applicants charge that: 1) the corporation has over-charged them for common expenses since 2012 when a new Board made the Food Court unit owners responsible for about 70% of the Corporation’s waste disposal costs; 2) the Corporation has permitted or enabled breaches of its declaration; and 3) the Corporation’s actions amount to oppressive conduct.

Justice Diamond found that: 1) PCC No. 492 had indeed overcharged the applicants for their share of the common expenses. The expense of waste disposal is to be shared by all unit owners (not just those in the Food Court). He ordered damages of over $54,000. 2) PCC No. 492 had permitted a breach of a “designated use” provision in its Declaration, in that it had permitted a second business to sell dim sum. Finally 3) the Corporation’s actions do not amount to oppressive conduct. Their actions were not unreasonable, but rather based on a poorly drafted Declaration. Furthermore, PCC 492 did not unjustly ignore or treat the applicants’ interests as being of no importance.

About the image: “The fireplace-RS” by Robbie Sproule from Montreal, Canada – Flickr.comimage description page. Licensed under CC BY 2.0 via Wikimedia Commons.