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

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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

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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

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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

Condo Law Digest – September 2018

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Patterson v. York Condominium Corporation No. 70 and Myronyuk, 2018 ONSC 3735
Decision Date: August 8, 2018
http://canlii.ca/t/htcmw

Ms Patterson is the owner of a townhouse in YCC No. 70 and was a member of the Board from 2013 to January 2016. The corporation is older and in need of repair. In June 2016 an investigative audit advised doing some repairs and increasing the common expense payments by 14% to build up the reserve fund. After receiving the report the corporation changed property management companies and started working with a company that specializes in older condominiums. The new management company helped the Board to prepare a budget that more accurately reflected its costs. The Board did not proceed with the increase in fees.

Ms Patterson argues that the current board has not fulfilled its obligations under the Condominium Act, and that action is needed to secure the financial well-being and physical integrity of the condominium property. She also alleges “harassment” by Ms Myronyuk, a Board member since January 2016. Ms Patterson asks that Ms Myronyuk be removed from the Board, that YCC No. 70 increase the common expense fees, and that various repairs be undertaken. The Board argues that the problems of the condominium are well in hand, repairs are underway, and that the allegations against Ms Myronyuk are unfounded.

Justice Pollak dismissed the application, as he could find no evidence that the Board had not acted reasonably and in good faith, exercising the care and skill that a reasonably prudent person would exercise. No court intervention is required.

Comment: Justice Pollak remarked, “The former management company may have had an interest in influencing the recommendation in the report to prevent its termination.”

Arif v. Mwebi, 2018 ONSC 4982
Decision Date: August 20, 2018
http://canlii.ca/t/htmft

At the end of June 2018 the applicants entered into an Agreement of Purchase and Sale to buy a townhouse condominium from the respondent, Ms Mwebi. On July 11 there was an amendment to the Agreement, extending the time for the delivery of the status certificate, and giving the purchasers two days to waive the condition. If they did not waive the condition, the Agreement would become null and void. The applicants, after reviewing the status certificate, proposed a further condition on the Agreement, asking that Ms Mwebi clear all maintenance and common expense fees. She refused, took the position that the Agreement had been terminated, proposed to return the deposit, and re-listed the property. A few days later she resold the unit with a closing date of August 17, 2018. On August 13 the applicants were granted an ex parte (emergency) motion seeking a Certificate of Pending Litigation (which would effectively derail the new sale).

In this application, Ms Mwebi asked to have the CPL overturned so she could go ahead with the new sale. Justice Ricchetti granted the motion for the following reasons: 1) In their ex parte motion, the applicants failed to disclose that they had proposed an amendment to the Agreement of Purchase and Sale, which the vendor had rejected. 2) The property is one of many townhouses and therefore not unique. 3) The applicants did not bring the ex parte motion in a timely manner, but waited until the new sale was about to close, putting maximum pressure on Ms Mwebi. 4) There is a bona fide third party purchaser for the unit.

Comment: Costs of $4406 were granted to Ms Mwebi.

Condominium Authority Tribunal Decisions

From July 2018

Mara Bossio v. Metro Toronto Condominium Corporation 965, 2018 ONCAT 6 

MTCC 965 is not obliged to provide Ms Bossio with the 2016 President’s Report, nor with Board meeting minutes from 1997 to 2001, as these documents relate to “actual or contemplated” litigation regarding a dispute between Ms Bossio and the corporation over damage to her unit.

Janet Cangiano v. Metropolitan Toronto Condominium Corporation No. 962, 2018 ONCAT 7

MTCC 962 is not obliged to provide Ms Cangiano with “legible and unaltered” copies of proxy forms from the November 2017 Annual General Meeting.

About the image: Workers on a suspended scaffold (a swing stage) mount fasteners for a rainscreen in Korolyov, Russia. Photo by Dmitry Ivanov. – Own work, CC BY-SA 3.0, Link

Condo Law Digest – Mid-summer 2018

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Zenith Aluminum Systems Limited v. 2335945 Ontario Inc., 2018 ONSC 4199
Decision Date: July 11, 2018
http://canlii.ca/t/hsxlr

Zenith provides glazing and aluminum window/wall systems to construction projects. The respondent is a condominium developer and builder carrying on business as “Momentum.” In late 2013 the two companies began negotiations regarding a window wall system to be used in the construction of a condominium project. Zenith eventually quoted a price of nearly $3 million. The quote did not include any pricing or details of a balcony guardrail system for the project, as Zenith doesn’t do this kind of work. (Another company eventually provided a quotation for this part of the project). In August 2014 Momentum accepted Zenith’s quote. In May 2015 the defendant took the position that Zenith should provide the balcony guardrail system as well. They met to discuss the issue and agreed to go to arbitration, and also agreed on arbitration dates as well as on an arbitrator.However no Arbitration Agreement was ever signed.

In early 2017 the parties entered into a tolling agreement (that is, they agreed to waive the right to claim that litigation should be dismissed due to the statue of limitations running out.) In one of those unexpected twists, Zenith never received Momentum’s signed copy of the agreement, because the document was diverted to the “junk” folder of their email system. With no signed arbitration agreement, no tolling agreement, and the limitations period running down, Zenith issued a breach of trust claim. Momentum takes the position that there is no longer an arbitration agreement, and they would like to have the issues resolved in litigation.

Justice Brown ordered that the parties submit to arbitration, get it done by the end of the year, and each bear their own costs.

Comment: Is the moral of this story to always check your spam filter, or to pick up the phone if a document you’re expecting fails to arrive?

Peel Standard CC No. 984 v. 8645361 Canada Limited, 2018 ONSC 4339
Decision Date: July 13, 2018
http://canlii.ca/t/ht020

Justice Glustein has ordered the defendant, Mirza Ahmed, owner of a unit in “Westwood Mall” (PSCC No. 984, the applicant), to sell the unit and to vacate other units that he currently rents. The judge also granted PSCC 984’s motion of contempt of court against Mr. Ahmed for breaches of past court orders. Three prior court orders addressed Mr. Ahmed’s behaviour towards the condominium board and staff. Among other things, he had been forbidden from contacting, communicating, harassing, or coming within 25 feet of condominium personnel. Justice Glustein also denied Mr. Ahmed’s request for adjournment on medical grounds, saying that Mr. Ahmed had not provided adequate reasons why the hearing that had already been adjourned twice should be adjourned a third time.

Comment: PSCC 984 had requested about $40,000 in costs; the judge granted $25,000. Mr. Ahmed did not help his case by telling the judge in an earlier proceeding, “Of course I will not [pay] them.”

About the image: Juliet’s Balcony in Verona by Guilhem DulousOwn work, CC BY-SA 1.0, Link

Condo Law Digest – June 2018

Simcoe SCC Nos. 431 & 434 v. Atkins, 2018 ONSC 3105
Decision Date: May 22, 2018
Link to text of decision

This is a dispute about some procedural issues related to a meeting of the owners of units in Simcoe SCC Nos. 431 & 434. The applicants argue that Mr. Atkins, a unit owner, has provided misleading information to other owners in the past, in attempts to discredit the current Boards of Directors. (By way of background, common expense charges for owners recently doubled, and the corporations are suing their developers in relation to first year budget statements.)

Everyone agrees that a meeting of the owners should be held. They disagree as to whether:

1) Owners may use proxies to vote;
2) The court should regulate Mr. Atkins’ communication with the owners before the meeting;
3) The court should make orders regulating the conduct of the meeting.

Justice Copeland ruled as follows:

1) While some of Mr. Atkins’ communications to owners were “unconstructive,” “mean-spirited,” and contained personal insults, this does not warrant preventing the use of proxies.
2) The corporations ask that, prior to the meeting, there be one (and only one) mailing sent to owners. It would enclose submissions from each side of the debate, and the content would be vetted by the lawyers for both parties. The reason given for this request was Mr. Atkins’ previous “misleading” communications with owners. Justice Copeland declined to make this order, saying it would be inconsistent with the democratic model laid out in the Condominium Act.
3) The parties have agreed that an independent person conduct the meeting, and they have even agreed who that person should be. Justice Copeland agreed to make an order for that individual to conduct the meeting, but declined to further manage the conduct of the meeting, leaving it to the chosen individual.

Comment: Justice Copeland closed with some stirring words on the importance of civil, open, and calm discussion in condominium communities, and an order for costs of $14,000 on a partial indemnity basis against Simcoe SCC Nos. 431 & 434. She declined to order costs against the directors personally.

About the image: By Ryan Somma from Occoquan, USA – Rally to Restore Sanity: What Do We Want? A Civil and Rationally Compelling Discussion of the Facts!, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=64269180

Condo Law Digest – April 2018

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Sennek v. Carleton Condominium Corporation No. 116, 2018
Decision Date: March 22, 2018
http://canlii.ca/t/hr686

This is an involved costs decision regarding legal proceedings between Manorama Sennek and Carleton Condominium Corporation No. 116. Laurentian Bank Company, Ms Sennek’s mortgage holder, was granted intervenor status. The purpose of this hearing was to determine 1) the amount of costs owing by Ms Sennek; and 2) whether and to what extent the costs could be added to the common expenses of her unit and recoverable by lien. (This is important, because it would mean that the condominium corporation would have priority over the bank in recovering monies. The mortgage principal is about $141,000.)

Last year Ms Sennek was declared a Vexatious Litigant. The legal wrangling between her and CCC No. 16 started with small claims court actions over tree pruning, the size of the parking spot accompanying her unit, and a flowerbox she installed that did not comply with the condominium’s bylaws. The original lien, registered in 2015, was for the costs of removing the flowerbox – around $760. It was open to the Laurentian Bank to pay that amount (plus legal fees) to have the lien discharged. They chose not to do this. The litigation “spun wildly out of control” and CCC No. 116 had to spend a great deal of money to respond to the “voluminous” materials Ms Sennek submitted. In this decision, Justice Sheard discusses Bills of Costs for five different motions and hearings, in addition to the costs for the Vexatious Litigant application and the original small claims court hearing. Based on her analyses, she awarded costs of nearly $110,00 to CCC No. 116, with about $85,000 recoverable by lien under the Condominium Act.

Comment: The Laurentian Bank submits, “that it had no expectation or reason to fear that the costs related to the removal of a flower box could escalate to over $100,000.00.” Quite.

Lahrkamp v. Metropolitan Toronto Condominium Corporation No. 932
Decision Date: March 16, 2018
http://canlii.ca/t/hr1pm

This is another decision relating to costs. Mr. Lahrkamp sought leave to appeal the costs decision against him of just over $21,000. These costs arose in a small claims court matter that both parties agree was worth $1500. Mr. Lahrkamp argued that the Deputy Judge Prattas failed to consider the principle of proportionality in awarding costs. However Justice Sachs denied the appeal, saying that the Deputy Judge made very clear that Mr. Lahrkamp had behaved unreasonably during the proceedings, which entitled him to make an award exceeding the limits for costs in the Small Claims Court.

Comment: Earlier this year Mr. Lahrkamp was declared a Vexatious Litigant.

Brief Notice

Since beginning this blog, I have come across many decisions regarding Dewan v. Burdet – a complex case with many parties, stretching back over 20 years. I have always quailed at summarizing any of them. In what may (finally) be close to the end of the line, the Ontario Court of Appeal has dismissed an appeal against the order of Justice Kane, granted the “minority” owners leave to appeal the costs order, and allowed their cross-appeal on costs.

About the image: By MichaelFLOWERBOX REGENT’S CANAL, CC BY 2.0, Link