Condo Law Digest – August 2019

Brasseur v. York Condominium Corporation No. 50, 2019 ONSC 4043 (CanLII)
http://canlii.ca/t/j197k
Decision Date: July 4, 2019

Ms. Brasseur has owned a unit in YCC No. 50 since 1978. In 2009, after the exterior windows of the condominium were replaced, Ms. Brasseur noticed condensation problems which led to mould. Ms. Brasseur alleges that the corporation has breached its duty to maintain and repair the common elements, and that its actions were oppressive. YCC No. 50 claims that Ms Brasseur has breached her duty to keep her unit in good repair and that her “lifestyle” was the cause of the mould.

Justice Nakatsuru reviewed six years of back-and-forth between Ms. Brasseur and the corporation, including the evidence of a number of expert witnesses. He also considered and ultimately accepted a motion to admit fresh evidence. He ultimately decided that YCC No. 50 breached the Condominium Act because their response to the mould was not timely enough nor truly responsive enough. However their conduct did not amount to oppression because they did not delay deliberately. Justice Nakatsuru did not find that Ms. Brasseur’s lifestyle choices enhanced the risk of mould. In particular, her failure to follow a recommendation that she keep her windows open during the winter was not unreasonable.

Comment: Justice Nakatsuru noted that mistrust and antagonism between Ms. Brasseur’s son (who lived with her in the unit and communicated on her behalf) and the condo board president made resolution of the mould problem more difficult and expensive. Conflict costs!

Brief Notices

A follow-up to Ottawa-Carleton Standard Condominium Corporation No. 671 v. Friend (from the November 2013 Digest): The corporation sought and received a declaration that Mr. Friend’s conduct constitutes workplace harassment and a breach of the Condominium Act (for harassing, intimidating and physically assaulting the Directors and other residents.) Justice Kane ordered costs against him of over $14,000. You can read the full judgement at this link: http://canlii.ca/t/j197q.

Justice Nakatsuru has denied a motion to have Stuart Weinstein declared a vexatious litigant saying that, “Resort to this rule is not meant to be an easily accessible alternative to a pleadings motion or a motion for summary judgment.” Mr. Weinstein had sued a number of government entities, Humber College, the YMCA, and the Condominium Regulatory Authority of Ontario in a dispute over a condo manager course that he took. I posted a summary in the May 2019 edition of the Condo Law Digest.

A publication ban will remain in force in B.K. v YRSCC no. […], 2019 ONSC 3837. This is a dispute concerning a condominium with building deficiencies and flooding, a Board of Directors substantially reduced by resignations, attempts to replace the Board, and physical threats against the property manager and the former board president.

About the image: “Window” by Loren Kerns.

Condo Law Digest – July 2019

Balmoral Developments Hilda Inc. v. Orillia 2019 ONSC 3292
http://canlii.ca/t/j0rlg
Decision Date: May 29, 2019

This is a motion for summary judgement in a long-running dispute between a developer and the City of Orillia. After Balmoral completed construction of stacked townhouses in 2011, Balmoral and the City got into a legal dispute regarding: 1) whether or not up to 7 residents could legally occupy each unit; 2) whether the project would be considered a boarding, lodging or rooming house under the City’s code; 3) whether the project was subject to barrier-free requirements under the Building Code. The resolution of these concrete issues hangs on an Application for Exception that Balmoral made in 2012. Ordinarily, such an application speeds things up for a developer. In this case, Balmoral charges that the city planner “sat on” the application for two years and refused to present the application to city council. In the meantime the City issued By-Law 2014-75, which imposed on Balmoral the condition that notice be given to prospective purchasers of the units that no more than four residents can legally occupy each unit.

Justice Mulligan found that the City acted in bad faith by imposing the conditions in the By-Law. In effect, they “carved in stone” the provisions sought by the planning staff. However he found that the barrier-free requirements imposed by the City were lawful.

Comment: Justice Mulligan indicated that he was prepared to continue as Trial Management Judge, indicating that litigation is probably not finished.

1552443 Ontario Inc. v. Nipissing Vacant Land Condominium Corporation No. 41, 2019 ONSC 3715
http://canlii.ca/t/j0zv8
Decision Date: June 14, 2019

The corporation was created in 2006 to manage and administer 32 units of vacant land in North Bay. The plaintiff originally owned all of the units. By 2012 the plaintiff had sold over one half of the units and was required to give up control of the Corporation. This did not happen until late 2017, resulting in acrimony between the plaintiff and the other owners. At the time of the hand-over, there was less than $100 in the Corporation’s operating and reserve accounts. The Corporation hired an independent professional to determine what the amount of the reserve fund should be.

After the owners assumed control of the Corporation, they registered a lien against the plaintiff’s units for payment of common expenses, and the plaintiff made a payment to cover the previous year’s expenses. In January 2018 all of the unit owners received a Notice of Special Assessment, with payment due the next month. The plaintiff refused to pay and so the Corporation issued Notices of Sale for the plaintiff’s units in May 2019. In this application, the plaintiff asks the court to find these Notices null and void.

The plaintiff made four arguments as to why the Notice of Special Assessment was invalid, misleading, and not levied in accordance with the by-laws of the Corporation. Justice Ellies did not find any of these arguments compelling and declined to find the Notices of Sale null and void.

Comment: Again, declining to pay common expense fees may result in legal trouble and expense.

About the image: The cottage of Stephen Leacock (arguably Orillia’s most famous resident.)

Condo Law Digest – June 2019

Reddy v. 1945086 Ontario Inc., 2019 ONSC 2554
http://canlii.ca/t/j044g
Decision Date: April 29, 2019

The applicants are 605 people who entered into Agreements of Purchase and Sale with the defendants in 2016 to purchase units in the as-yet unbuilt Cosmos Towers. The Agreements contained a provision permitting certain types of early termination of the contracts. (These provisions are required by law.) One permitted reason for termination of the contract is the failure of the vendor to secure financing on satisfactory terms. The vendor must agree to “take all commercially reasonable steps within its power” to satisfy the early termination conditions. The Agreements also contained a Proviso that the vendor has the sole and absolute discretion regarding termination conditions. In 2018 the defendants informed the applicants that the Cosmos Towers projects had been cancelled because they couldn’t secure funding. All of the deposits made by the purchasers were refunded.

Justice Penny noted that the reasonableness and good faith of the defendants with regard to securing satisfactory financing were not in question. The applicants argue that 1) the defendants had no right to claim for themselves absolute discretion over the termination conditions in the Proviso; 2) that the termination was therefore a breach of contract; and 3) that they are entitled to damages. Justice Penny provided a number of arguments for why the correct interpretation of the Proviso was that the vendor did in fact have the right to terminate the project if they could not secure funding despite having taken all reasonable efforts. Therefore the termination was not a breach of contract and the applicants are not entitled to damages.

Comment: Justice Penny noted that such early termination conditions protect purchasers from being involved in projects that are insufficiently funded and at risk of failure.

About the image: Photo by Markus Schriebl. https://commons.wikimedia.org/wiki/File:Cosmos-Fohnsdorf.jpg#/media/File:Cosmos-Fohnsdorf.jpg

Condo Law Digest – May 2019

AMA Velas Manabi 2014 (6) (13936403767).jpgTall Ships Landing Developments v. Leeds Standard Condominium Co. No. 41, 2019 ONSC 2600
Decision Date: April 25, 2019
http://canlii.ca/t/j000t

This action is one installment in a complex dispute involving a developer, a condominium complex (LSCC No. 41), a property management company, and one of the condominium directors. At the heart of this particular dispute is a Shared Facilities Agreement. The issue that inspired this action seems to have been resolved: it was a dispute over the process by which a new shared facilities manager was chosen.

The respondents argued that the present application should not be heard on its merits because it overlaps with an action before the courts in Toronto, and because the applicant did not comply with the dispute resolution process set out in the Shared Facilities Agreement. They asked Justice Mew to strike the application in its entirety. The applicant argued that the Toronto action does not involve identical parties.

Justice Mew concluded that the application should be stayed on the grounds that the applicant and LSCC No. 41 are bound by the dispute resolution process set out in their Agreement. Depending on the outcome of that process, the claims against the other respondents (the property management company and the director) may or may not be sustainable and worth continuing.

Comment: Justice Mew advised the parties that if negotiation and mediation fail, the parties can obtain resolution of some of the issues through arbitration. If there are still issues to be resolved after the ADR process is exhausted, then he will remain seized of the matter.

Weinstein v. HMQ, 2019 ONSC 2133
Decision Date: April 4, 2019
http://canlii.ca/t/hzjss

In this action, Mr. Weinstein claims against a number of government ministries, Humber College, the YMCA, and the Condominium Regulatory Authority of Ontario. Mr. Weinstein, who was not represented in court, took a skills training course to be a condominium manager. However he is not currently eligible for a condo manager license because he does not have two years’ work experience. The defendants have brought a joint motion to strike the Statement of Claim.

While sympathetic to the plaintiff and to the difficulty of navigating the legal process without a lawyer, Justice Nakatsuru found that the Statement of Claim contained no material facts and did not comply with the law. He ordered it struck, but granted Mr. Weinstein leave to amend the claim and correct its deficiencies. He also granted costs of $500 each to two of the defendants.

Comment: The defendants had argued that Mr. Weinstein should not be granted leave to amend, as it was “plain and obvious” he had no reasonable causes of action. However Judge Nakatsuru found that this would not be right, fair, or in accordance with the law.

Brief Notices:

In Sajadi v. MTCC 648 the Human Rights Tribunal of Ontario has dismissed Ms Sajadi’s claim of discrimination on the basis of place of origin and family status. Ms Sajadi was accused of running a daycare business out of her unit, which is prohibited under the Declaration. She alleged that the corporation discriminated against her because they did not make similar accusations against others who were also running businesses from their units. In April 2017 an arbitrator dismissed her claims of discrimination and found in favour of the corporation. In this action the adjudicator for the HRTO dismissed Ms Sajadi’s application on the grounds that the arbitrator had already addressed her claim of discrimination.

An appeal has been denied in Patterson v. York Condominium Corporation No. 70. (This case was summarized in the May 2018 edition of the Condo Law Digest.)

About the image: By amalavida.tv – Flickr, CC BY-SA 2.0, Link

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

Condo Law Digest – March 2019

Excavating new Union Station site 1915.jpg

Ania v. Spice Danforth Inc., 2019 ONSC 572
Decision Date: February 15, 2019
http://canlii.ca/t/hxl9f

This is a dispute over an Agreement of Purchase and Sale (APS) of a townhouse condominium. The respondent is a condominium developer. The applicants entered into the agreement with the vendor in September 2016 for a unit that they were to occupy in March 2019. The occupancy date was later extended by one year. The applicants have made deposits of about $55,600 which are being held in trust by the respondent. In January 2018 Spice Danforth asked all purchasers for a binding and unconditional mortgage commitment, issued by a lender. The applicants supplied what they thought was adequate documentation. Over the next few months the vendors asked for more and more documentation, and the applicants did their best to comply. In April 2018 the vendors, not satisfied with the financial documents that the applicants produced, moved to terminate the APS.

It emerged in cross-examination that Spice Danforth was no longer planning a condominium development, but plans to build rental housing instead. The applicants ask the court to declare that the APS is in effect, that their deposit should be returned to them, and that there should be a trial with respect to their damages (as a result of the decision not to proceed with the condo development.) The respondent seeks a declaration that the applicants are in default, and that their deposit is forfeited.

Justice Swinton found that the applicants had complied with the APS and the financing requirements, and that the respondents acted unreasonably and in bad faith. She ordered that the deposit be returned with interest, and that there be a trial regarding the claim for damages.

Comment: Of the 116 purchasers of units in the development, 95 did not qualify for financing.

Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381
Decision Date: February 27, 2019
http://canlii.ca/t/hxqq3

The applicants are two dentists who have a practice together. The defendants are “Queen’s Walk,” a corporate developer, its directors and officers, “Bridlepath,” a real estate brokerage, and two employees of Bridlepath. The applicants entered into an APS in July 2017 to purchase a commercial unit in an as-yet unbuilt complex. The APS contained a restrictive covenant that the applicants would have the sole dental office. In September 2017 Queen’s Walk terminated the APS, claiming that the applicant’s credit wasn’t adequate. The plaintiffs claim that 1) Queen’s Walk never checked their credit and that they had sufficient funds to close the deal; and 2) Queen’s Walk failed to secure the termination of an agreement with another dentist to purchase a unit in the complex. They commenced an action for breach of contract, inducing breach of contract, deceit, misrepresentation, and negligence.

In this motion, the directors and officers of Queen’s Walk ask that all claims against them be struck. Queen’s Walk asks that claim against them for punitive damages be struck.

Justice Nishikawa decided that 1) There was no reasonable cause of action against the directors and officers of Queen’s Walk and so the claim could be struck. 2) The Statement of Claim does not support a claim for punitive damages against Queen’s Walk, and so that claim is struck. 3) The plaintiffs may amend their claim against Queen’s Walk, but not against directors and officers.

Friedrich v. MTCC No. 1018, 2019 ONSC 1153
Decision Date: February 19, 2019
http://canlii.ca/t/hxl9l

This is a dismissal of an appeal. (However I cannot find the text of the original decision.) Mr. Friedrich owns a unit in MTCC No. 1018. The corporation made a decision to change the entry to Parking Level 1 from a telephone system to a motion sensor with monitored CCTV and a visit by a security guard at least every two hours. MTCC thus met the duty of an occupier under the Occupier’s Liability Act. Justice Myers found that Mr. Friedrich failed to prove that that MTCC No. 1018 breached the acceptable standard of care. Although vandalism occurred after the new system was in place, Mr. Friedrich did not offer any evidence that the corporation’s decision to make the changes was unreasonable or that they foreseeably caused his loss.

Comment: Once again we see judges upholding the principle that a condominium Board’s business judgment is entitle to deference.

About the image: Toronto construction in an earlier time. “Excavating the site of the new Union Station” by Dept. of Public Works – This image is available from the City of Toronto Archives, listed under the archival citation Fonds 200, Series 372, Subseries 30, Item 64. Public Domain, Link

Condo Law Digest – January 2019

Forrest Creek.jpg

Noguera v. Muskoka Condominium Corporation No. 22, 2018 ONSC 7278
Decision Date: December 11, 2018
http://canlii.ca/t/hwj6w

The applicants, Mr. and Mrs. Noguera, have owned unit 210 of MCC No. 22 since 2014. In 2016 their next-door neighbor Mr. Mitchell informed them that he planned to sell his unit. The Nogueras proposed to the Board that they create an opening between the two units. If the proposal was approved, they would make an offer to purchase unit 211. The Board considered the proposal in March 2016. Both Mr. Noguera and Mr. Mitchell were Board members at the time. Mr. Mitchell indicated that he had a conflict of interest and left the meeting while the proposal was discussed. Mr. Noguera remained for the discussion of the proposal but did not vote on it. He did not feel he had a conflict under the Condominium Act and no one present indicated otherwise. The Board voted to approve the proposal, subject to certain conditions. The written resolution did not include a Section 98 agreement, (that’s the agreement, required by law, that an owner makes with the board before making changes to the common elements.) Previous owners who had made structural changes were similarly not asked to sign Section 98 agreements.

The Nogueras purchased unit 211 and began renovations. Somehow, starting in 2017, relations between the Nogueras and others began to sour. Among other things, the new President of the Board told the Nogueras that they were forbidden from using the lakeside path, based on unproven allegations that they had been looking into the windows of other units. In November 2018 the Board discussed whether the Nogueras should stop renovations until they signed a Section 98 agreement. The Nogueras indicated that they were willing to sign the agreement but not to stop renovations. (Further conflict: A couple of Board meetings held without proper notice to Mr. Noguera, still a Board member; a “heavy-handed” letter to the Nogueras from the Corporation’s lawyer; the President of the Board telling other unit owners that Mr. Noguera was “evil;” secret audiotaping of a Board meeting.)

Justice Matheson had to decide:

1) Was there a quorum at the March 2016 meeting when the Nogueras proposal was discussed?
Answer: Yes. Mr. Noguera did not have a conflict of interest and so his presence counts toward the quorum.

2) Was approval given for one or two openings between units 210 and 211?
Answer: The Board didn’t specifically discuss this question, but they later approved plans that indicated two openings.

3) What about the Section 98 agreement?
Answer: The Nogueras must sign one, but the one proposed by the Board is too broad.

4) How to deal with the other elements of the conflict?
Answer: The Condominium wrongly disparaged the Nogueras and must pay them $10,000 in damages. The Nogueras may use the lakeside path again.

Comment: A wise person once said, “If you don’t like rules, don’t buy a condominium.” I would like to add, “If you can’t set aside personal enmity, don’t become a condominium director.”

About the image: A forest creek in Muskoka by Michael J. BennettOwn work, CC BY-SA 3.0, Link

Condo Law Digest – December 2018

ParisCafeDiscussion.png1589680 Ontario Inc. v. TSCC 1441, 2018 ONSC 6941
Decision Date: November 21, 2018
http://canlii.ca/t/hw5wj

The plaintiff rents commercial space in TSCC 1441, a downtown condominium. The parties have been in litigation for several years over the use of common elements. In May 2018 the parties met with Justice LeMay in a pre-trial conference that lasted two days. They (apparently) resolved their dispute, and created Minutes of Settlement. However the parties did not sign any releases, as they disagreed as to what should and should not be included in the releases. In this action, the plaintiff is seeking an order making the Minutes of Settlement a Court Order. TSCC 1441 opposes, saying that to do so would be inconsistent with the intentions of the parties when they settled the matter.

Based on his interpretation of the Minutes, Justice LeMay declined to make them a stand-alone Court Order. He dismissed the action without costs.

Comment: Truly a mediator’s nightmare: “The parties started to disagree with each other about the terms and obligations under these minutes almost from the moment that they were signed.”

Brief Notices

In Precision Tree Care Ltd. v. Peel Condominium Corporation 507 (which I summarized last month) Justice Lemon has ordered costs of $10,000 to be paid by PCC 507.

The decision in C.M. Callow Inc. v. Tammy Zollinger et al. (which I summarized in January 2018) has been reversed by the Appeal Court. You may remember that the issue at stake had to do with the termination of a snow removal contract. The trial judge erred by “improperly expanding the duty of honest performance in a manner that went beyond the terms of the winter contract” and also erred in calculating damages.

About the image: “Discussing the War in a Paris Cafe” by Fred Barnard – Illustrated London News, Public Domain, Link

Condo Law Digest – November 2018

Branches on a rainy day.jpgPrecision Tree Care Ltd. v. Peel Condominium Corporation et al, 2018 ONSC 5755
Decision Date: September 28, 2018
http://canlii.ca/t/hvb98

This is a motion for security for costs made by the defendant, PCC 507, against Precision Tree Care. (In other words, PCC 507 is asking that Precision Tree Care be legally required to pay money into court to cover a possible future cost order, in the case that PCC 507 prevails in the legal dispute between them and is awarded costs.)

The original dispute is rooted in the cost of tree trimming services. In September 2017 Precision agreed to remove trees and perform other services at PCC 507 for a cost of about $12,000. In December, Precision invoiced PCC 507 for nearly $164,000. Precision argues that the work was a lot more involved than they realized at first as many of the trees were unsafe to climb and they had to bring in heavy equipment at considerable cost. PCC 507 argues that the extra work was not authorized by their property management company, and that an independent arborist they retained valued the work completed by Precision at about $2,000. (PCC 507’s property manager at the time is no longer employed by the company in question.)

In this action, PCC 507 argues that the burden is on Precision to establish that 1) their case has some merit; and 2) they are impecunious (and so an order for security would be unjust). Justice Lemon found “no dispute” that Precision lacks the assets to pay costs if unsuccessful. However he also found that Precision’s case was not “plainly devoid of merit,” as much would depend on the testimony of the former property manager. He dismissed the motion and declined to order security for costs.

Comment: It will be interesting to see if the parties can settle their dispute without coming back to court.

Barta v. Rudolph, 2018 ONSC 6208
Decision Date: October 17, 2018
http://canlii.ca/t/hvl93

This is an appeal of a Small Claims Court judgement. In August 2015 Mr. Rudolph signed a one-year lease agreement to rent Ms. Barta’s condominium unit starting November 1, 2015. Before signing the lease, Mr. Rudolph had several air quality tests done, as his daughter, who suffers from mold toxicity, planned to visit him and occasionally live in the unit. In October 2015 Mr. Rudolph presented Ms. Barta with a deficiency list of 13 items, all of which she addressed. In early November 2015 Mr. Rudolph gathered dust samples from the unit and sent them to a lab in the U.S.to perform an Environmental Relative Moldiness Index Report (ERMI), as his daughter’s specialist doctor in the U.S. had advised that she could not go into the unit without this test being performed. The test came back positive. Mr. Rudolph advised Ms. Barta that the unit was “not fit for human habitation” and that he would not be moving in.

At the trial, Ms. Barta testified that she called two or three private mold companies who told her that they had never heard of the ERMI test, and that they could do nothing if there was no visible indication of mold. She was unable to rent the unit and sold it in April 2016. Mr. Rudolph, for his part, agreed that he could have done the ERMI test before signing the lease, and that he would not have moved into the unit even if Ms. Barta had taken further steps to remediate the mold. The trial judge ordered Mr. Rudolph to pay Ms. Barta $20,688 for lost rent, costs, and interest.

Mr. Rudolph’s main argument for the appeal was that the trial judge did not apply the “fit for habitation” test. Justice Conway dismissed Mr. Rudolph’s appeal, saying it was clear from the trial judge’s reasons that he understood the test, even if he did not explicitly articulate it. Justice Conway ordered that Mr. Rudolph pay costs of $8500.

Comment: Sometimes I think that if people stopped throwing good money after bad, the appeal courts would have far less to do.

About the image: “Branches on a rainy night” by J.smithOwn work, CC BY-SA 3.0, Link

Condo Law Digest – October 2018

Macaca fuscata meditation.jpg

Metropolitan Toronto Condominium Corporation No. 596 v. Best View Dining Ltd., 2018 ONSC 5058
Decision Date: September 4, 2018
http://canlii.ca/t/htssb

This is a motion in an on-going dispute between a commercial tenant and a mixed-use condominium corporation, stemming from noise complaints. In September 2017 MTCC No. 596 obtained an order requiring Best View Dining to abate the noise disturbing residential owners. The noise problems persisted, and in November 2017 MTCC No. 596 brought a contempt motion. Justice Perell became seized of the matter in April 2018. He put off consideration of the contempt motion, reserved the matter of costs, and made an interim order requiring more steps to address the noise problems. MTCC No. 596 alleges that they incurred close to $39,000 in legal fees and engineering costs between November 2017 and May 2018. They asked Best View Dining for reimbursement and informed them that if they didn’t pay, the amount would be added to their common expenses. Best View did not pay, and in July 2018 the corporation registered a lien.

In this motion, Best View Dining seeks an order from the court discharging the lien. They argue that the lien was premature, given that there had been no ruling on the contempt motion. Justice Perell found that the lien was proper and dismissed the motion. Best View’s “real objection,” he charged, was that MTCC No. 596 was “presumptuously writing itself a blank cheque” before the court could review the claim for costs. However if there was an overcharge, this could be resolved upon the return of the contempt motion. If the contempt motion never comes back, then the dispute over the amount of the lien could be resolved under the Mortgages Act.

Comment: Let’s hope, for everyone’s sake, that there is some technological solution to the noise problem.

Taft Management Inc. v Gentile, 2018 CanLII 82880 (ON SCSM)
Decision Date: August 27, 2018
http://canlii.ca/t/htth4

The defendant is the chairman of the board of TSCC No. 2003. Following a November 2016 board meeting he sent two emails to the rest of the board, raising concerns about the performance of the plaintiff, at that time the property manager of the condo. Taft somehow obtained copies of these emails, and found that they contained “false and damaging” statements. Taft brought a claim against Gentile, and in this motion, Gentile asks the court to dismiss the claim based on anti-SLAPP provisions.

(SLAPP is “strategic litigation against public participation.” The legislation is intended to encourage freedom of expression on matters of public interest.)

Justice Prattas dismissed the motion, saying that the matters discussed in the emails were “communications related to matters involving the everyday affairs at the Condo” and not in the public interest. The plaintiff’s claim can proceed to trial, and the parties will bear their own costs.

Comment: Mediation can be highly effective in disputes such as this, where feelings run high and the financial stakes are relatively low.

About the image: Monkey enjoying a quiet moment by Daisuke tashiro from Japan – snow monkey, CC BY-SA 2.0, Link