Condo Law Digest – April 2019

Nilgais fighting, Lakeshwari, Gwalior district, India.jpg

Swan v. Durham Condominium Corporation No. 45, 2019 ONSC 1567
Decision Date: March 8, 2019
http://canlii.ca/t/hxxlj

Mr. Swan owns a unit in DCC No. 45. He served as a Board Member for about 4 months in 2009 before being removed by a vote of the unit owners. After his removal from the Board, Mr. Swan initiated five proceedings against the Corporation in Small Claims Court. These were all dismissed, as was his appeal. In May 2010 DCC No. 45 commenced a court application against Mr. Swan, asking 1) that he be required to remove a satellite dish from his unit; 2) a declaration that he had breached the standard of care for a Director; and 3) that he be declared a vexatious litigant. Mr. Swan brought a cross-application to be reinstated as a Director, and seeking a declaration that the Corporation had treated him oppressively. In June 2012 Justice Sosna found that Mr. Swan had indeed breached the standard of care for a director, declined to have him declared a vexatious litigant, and awarded costs of $45,000 to DCC No. 45. (The satellite dish had already been taken down by that point.)

In February 2013 DCC No. 45 gave Mr. Swan notice that it would be registering a lien on his unit for nearly $219,000. In a letter of August 2018, the Corporation advised that they had their legal costs assessed, and that the amount of the lien had been reduced to just over $134,000. In this action, Mr. Swan seeks indemnification from costs on the grounds that he is a former Director, and asks that the lien be vacated.

Justice Nishikawa noted that despite having held the position of Director for 3 months, Mr. Swan has spent about six years litigating his claim for indemnity. She ordered that the lien of $219,000 be vacated and a new lien for the correct amount be registered. She noted that legal costs related to the “vexatious litigant” application should not be included, nor should the costs of a compliance letter where no proceeding was commenced in relation to the conduct described in the letter. She ordered additional costs (for this proceeding) of $18,000 to the Corporation.

Comment: Even with the reduced costs assessment this has turned into an expensive dispute for everyone involved.

Lebko v. Toronto Standard Condominium Co. 1862 2019 ONSC 1602
Decision Date: March 12, 2019
http://canlii.ca/t/hxzgb

Ms. Lebko is a resident in TSCC 1862. On April 4, 2011, around 6pm, Ms. Lebko’s mother was visiting her at the condominium and fell while exiting Elevator 2, suffering a broken wrist and shoulder dislocation. A witness noticed that the elevator was not level with the foyer and estimated it to be 1/4 -1/2 inch below the foyer threshold, although no photographs were taken at the time. Ms. Lebko and her mother brought a claim against TSCC 1862, Del Property Management, thyssenkrupp Elevator, and G4S Secure Solutions. In this action, all four defendants ask for a summary dismissal on the grounds that there is no genuine issue for trial.

On April 2, 2011 (that is, two days before the accident), two residents reported that Elevator 2 was not stopping level with the floor and it was taken out of service by G4S Secure Solutions. On April 4, a thyssenkrupp Elevator technician attended, serviced the elevators, put Elevator 2 back into service, and left the building around 4:45. (It isn’t clear if this was a regular maintenance visit, or in response to complaints about Elevator 2.) After Ms. Lebko’s accident, several people used the same elevator without incident, although around 7pm a security officer noticed the elevator was having “levelling issues” and took it out of service.

Justice Brown granted the summary judgement motions of all four defendants. She found that none of the defendants were negligent or breached their duty of care to the plaintiff. TSCC 1862 had a reasonable system in place to keep the premises reasonably safe for visitors. Nothing indicates that G4S was negligent. Similarly, there was no evidence that thyssenkrupp’s conduct fell below the requisite standard of care.

Comment: A mediation in 2016 failed to settle the claim.

Brief Notices:

In Davidson v. CCC 73 Justice Labrosse finds that Divisional Court does not have jurisdiction to hear an appeal from an interlocutory order of a Small Claims Court judge.

A summary judgement has been denied in Jermark v. MTCC 1371. The issue: Jermark charges that it submitted the winning bid in a tender to replace the Kitec piping in the condominium, and that MTCC is in breach of contract for awarding the contract to another company. MTCC 1371 had asked for a summary dismissal but Justice Nakatsura has ruled that a trial is required. (Or perhaps they can come to an agreement through mediation?)

In Andrews v. Great Gulf the Human Rights Tribunal of Ontario has dismissed the application of a condominium owner who argued that the Corporation’s developer should have provided gender-inclusive washrooms in the pool and steam room areas. The building was designed and built “years or at least months” before Ontario Human Rights Commission’s Policy on Preventing Discrimination Because of Gender Identity and Gender Expression was approved in 2014.

About the image: Male nilgais fighting (Boselaphus tragocamelus), Lakeshwari, Gwalior district, India. (A “nilgai” is a large Asian antelope.) This file is not in the public domain: © Yann Forget / Wikimedia Commons, CC BY-SA 4.0, Link

Posted in Condo Disputes.

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