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

Workers on suspended scaffold in Korolyov.jpg

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

2009 windowbox London 3479978387.jpg

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

Condo Law Digest – March 2018

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Scicluna v. Solstice Two Limited, 2018 ONCA 176
Decision Kate: February 23, 2018
http://canlii.ca/t/hqktm

This is an appeal by two parties against the decision made by Justice Brown in Scicluna v Solstice. Ms. Scicluna agreed to purchase a condominium from Solstice Two and advanced just over $293,000. She lost her job and was unable to pay the remaining $78,000. At first, Solstice Two agreed to return to Ms. Scicluna all of the money she had advanced, less $30,000, provided that the condominium was resold. It was indeed resold (for $435,000). However Ms. Scicluna refused to sign the release document, mistakenly believing that Solstice would keep $60,000 rather than $30,000. She commenced a claim, and in response Solstice invoked the forfeiture provision in their original agreement, demanding to retain every cent that Ms. Scicluna had paid. Justice Brown granted Ms. Scicluna relief from forfeiture but instead of giving the money to Ms. Scicluna, she gave it to Ms. Scicluna’s trustee in bankruptcy, Keven Thatcher and Associates (KTL).

In this action, Ms. Scicluna argues that Justice Brown erred in giving the money to KTL, and Solstice argues that Ms. Scicluna should not have been granted relief from forfeiture. The appeal judges upheld Justice Brown’s decision. Regarding the claim by Solstice, it would be a “grossly disproportionate windfall” for them to retain the full amount paid by Ms. Scicluna. Regarding Ms. Scicluna’s appeal, she did not fully disclose to KTL her claim to the deposit on the condo, or her lawsuits against Solstice. It would not advance the principles of the Bankruptcy and Insolvency Act for her to retain the funds.

Comment: Costs of $5000 each from Ms. Scicluna and Solstice were granted to KTL. The trial judge had declined to order costs, saying that the matter should have settled. (For anyone keeping track, there has now been a full trial and an appeal over a matter that “should have settled.”)

Axess Law Professional Corporation v. Sood
Decision Date: February 1, 2018
http://canlii.ca/t/hq5ln

This is an appeal of a small claims court decision. Mr. Sood purchased a condominium in 2015 and was represented in the transaction by Axess. Two different taxes were due on the purchase: Ontario Land Transfer Tax and Municipal Land Transfer Tax. As it happened, on the very day that Mr. Sood’s transaction closed, an automatic software update in the system at Axess introduced an additional step in order to have both taxes included on the Trust Ledger Statement. When the transaction closed, the Transfer document included both taxes, but Axess never received the funds for the Municipal Transfer tax from Mr. Sood. Instead the funds were automatically paid out to the tax authority from the law firm’s own accounts.

Three months later, when Axess noticed the error, they requested payment from Mr. Sood. He refused, and Axess commenced a small claims court action. Mr. Sood’s appeal relies on Subsection 2(1) of the Solicitor’s Act. The legal arguments turned on whether or not the tax payment should be considered a “disbursement.” In the end, Justice Matheson denied the appeal.

Comment: Liability for tax goes to the purchaser, not their lawyers.

Brief Notices

An appeal has been denied in White Snow and Sunshine Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 561. Costs of $10,000 were awarded to the respondent. I summarized this dispute over access to condominium amenities in September 2017.

Manorama Sennek’s appeal from the judgment declaring her to be a “vexatious litigant” has been dismissed. Carleton Condominium Corporation No. 116 has spent “well over” $100,000 on disputes with her.

About the image: Lobby of the Old Commercial Appeal Building, Memphis, 1961 by ZeamaysOwn work, CC BY-SA 3.0, Link

Condo Law Digest – February 2018

Rosario under construction.jpgJones v. 2341464 Ontario Inc., 2018 ONSC 717
Decision Date: January 30, 2018
http://canlii.ca/t/hq4hm

In May 2013 the parties entered into an agreement of purchase and sale. The applicants were to purchase a pre-construction unit in a building on Niagara Street for $649,000. The occupancy date was to be on or before September 1, 2014. In May 2013 the occupancy date was moved to no later than February 1, 2015. Construction did not actually begin until May 2016. In February 2017 the applicants were advised of some changes to the layout of the condominium units, including the removal of balconies. The applicants decided to proceed with the purchase despite these changes. Later the same month the defendant contacted the respondents and advised them that, due to the delays and to costs they had incurred in the planning process, they would no longer honour the purchase and sale agreement. The new price (on which the applicants had “first right of refusal”) was to be $875,000.

Justice Favreau found the original agreement of purchase and sale to be valid and enforceable. He made an order of specific performance granting the applicants occupancy of their unit within 30 days, and also awarded them $20,000 in costs.

Comment: Justice Favreau said that it was “evident” that the respondents were reluctant to complete the sale so they could benefit from an increase in the value of real estate since the agreement was made.

Toronto Condominium Corp. 1462 v. Dangubic, 2018 ONSC 491
Decision Date: January 19, 2018
http://canlii.ca/t/hpvh1

Mr. Dangubic owns a unit in TSCC No. 1462. Justice Morgan describes him as “not a good neighbor,” as he has violated other residents’ rights of quiet enjoyment, has gotten into verbal conflicts with others, and has left obscene and aggressive voice messages. TSCC charges that he owes over $14,000 in common expenses; these consist mainly of the legal cost of compliance letters and of a lien, and costs of attempted collection of arrears. The main legal issue at stake is whether the lien registered by TSCC 1462 is valid.

Justice Morgan ruled that the lien was indeed valid, as Mr. Dangubic was aware of the claim against him, knew the circumstances of why and how fees were incurred, and the fees are reasonable for the legal work done. He granted TSCC 1462’s request for summary judgment and also granted them costs on a substantial indemnity basis of over $16,000.

Comment: Disruptive owners should understand that the legal cost of getting them to comply with the corporation’s rules will not be borne by the owners at large.

About the image: Building under construction in Rosario, Argentina, which like Toronto is experiencing a construction boom. CC BY-SA 2.5, Link

Condo Law Digest – January 2018

Déneigement westmount.jpg

C.M. Callow Inc. v. Tammy Zollinger et al., 2017 ONSC 7095
Decision Date: November 27, 2017
http://canlii.ca/t/hp00r

C.M. Callow Inc. is a property maintenance company that provided winter and summer maintenance at a condominium complex in Ottawa, managed by the Condominium Management Group (CMG). CMG terminated the two-year winter maintenance contract with Callow earlier than expected, while Ms. Zollinger was property manager. The issues in this trial were whether CMG was in breach of contract, and if so, what are Callow’s damages?

Callow’s position is that the CMG decided to terminate the winter maintenance contract in March 2013 but did not advise him until Sept 3013. Between March and September, while Callow was fulfilling the summer maintenance contract, Ms. Zollinger and certain board members falsely represented that the winter maintenance contract would be renewed or extended. During this time, Callow provided extra “freebie” services to enhance the property, as an incentive to CMG to renew the two-year contract.

CMG’s position is that Callow’s winter maintenance work did not meet their expectations, and that they were within their rights to terminate the contract with 10-days notice, and they did not falsely represent nor act in bad faith.

This case hinged primarily on two things: the evidence (including emails exchanged among board members and the parties’ credibility), and some fundamental principles of common law contracts. Justice O’Bonsawin favoured the evidence provided by Callow, saying that witnesses for the defendant were prone to exaggeration and answered questions in ways that were at odds with the written record. She found no evidence that Callow’s work was below standard. Furthermore, parties to a contract have a duty to act honestly in their dealings and not seek to undermine the other’s interests in bad faith. CMG actively deceived Callow by not disclosing their intention to terminate the contract. Justice O’Bonsawin awarded damages of just over $80,000 (the value of the contract after expenses and the value of equipment leased in anticipation of fulfilling the contract) to Callow.

Comment: Speak with a lawyer before breaking a contract, no matter how reasonable you believe your position to be.

About the image: Snow removal in Westmount (Montreal) Canada in 1944 by Conrad PoirierThis image is available from Bibliothèque et Archives nationales du Québec
Public Domain, Link

Condo Law Digest – October 2017

"For Sale" sign at Berkley Mill, Norfolk, Virginia, April 16, 1927 (16052444819).jpg

Shah v. Southdown Towns Ltd., 2017 ONSC 5391
Decision Date: Sept 11, 2017
http://canlii.ca/t/h5w8p

In the fall of 2016 each of the five applicants entered into a Purchase and Sale Agreement to buy a pre-construction condominium unit and a parking spot from Southdown Towns. (Mr. Shah was the first of the five applicants to enter into the Agreement, and he dealt with Southdown on behalf of the others.) Each purchaser paid a deposit and agreed to provide proof of mortgage approval within 10 days of the acceptance of the Agreement. If this condition was not met, Southdown Towns had the option to terminate the Agreement. In Feb 2017 Southdown sent Mr. Shah an email requesting confirmation of mortgage approval. A month later counsel for Southdown sent a letter to each of the applicants requesting the mortgage approval by March 30, and warning them that Southdown Towns would exercise its rights to terminate the Agreement if they did not comply.

Mr. Shah claims that he snail-mailed the documents on March 28, but provided nothing to support this claim. On March 31 he dropped off the documents at the sales center. These documents proved to be inadequate. On the same day Southdown Towns wrote to each purchaser, terminating the Purchase and Sale Agreement. The applicants finally provided valid mortgage approvals in mid-April. In this action, the Applicants ask the court for “relief from forfeiture;” that is, for the Purchase and Sale Agreement to go ahead. They estimate that each of them will lose $150,000 to $200,000 in potential value (the increase in value of the units between time of purchase and move-in date) if relief is not granted.

Justice Emory declined to grant the requested relief, saying that the Applicants had not exercised reasonable diligence to comply with the Agreement

Comment: The Applicants will receive their deposits back.

Patel v. Davis, 2017 ONSC 5496
Decision Date: Sept 22, 2017
http://canlii.ca/t/h694x

In June 2017 Mr. Patel entered into a valid and enforceable agreement to purchase a condominium unit from Mr. Davis, with a closing date of August 31, 2017. Sometime in July Mr. Davis seems to have had a change of heart and refused to complete the sale. In this action, Mr. Patel seeks an order that Mr. Davis deliver clear title to the property.

Justice Peterson granted the application, stating that the condominium is sufficiently unique (large footprint, two bedrooms, overlooking a park and with a wheelchair-accessible bathroom), that another comparable property would not be readily available.

Comment: Mr. Davis was not represented by counsel, did not file a defense, and did not appear in Court.

Zordel v. MTCC No. 949, 2017 ONSC 5544
Decision Date: Sept 19, 2017
http://canlii.ca/t/h67pp

The applicants are owners of units in MTCC No. 949. In June 2016 the Corporation switched its cable TV and internet provider from Rogers to a new service provider, Frontline. As previously, the costs for these services are charged as a common expense to unit owners. The applicants 1) challenge the jurisdiction of MTCC No. 949 to enter into this agreement. 2) Assert that MTCC No. 949 should have sought the approval of 2/3s of unit owners before making the switch. 3) Seek an order requiring MTCC No. 949 to allow them to opt out of the service. 4) Submit that MTCC No. 949 has acted oppressively towards them. 5) Seek clarification from court as to owner expectations when meetings are requested.

Justice Cavanagh dismissed the application: 1) MTCC No. 949 does have jurisdiction, according to Subsections 17(1) and (2) of the Condominium Act, its own by-laws, and the decision in Mancuso v. York Condominium Corp. No. 216. 2) MTCC No. 949 did not require approval of 2/3s of unit owners as the change in service is not “substantial.” 3) As MTCC had jurisdiction to make the bulk services agreement, unit owners do not have the right to opt-out of it. 4) The conduct of MTCC No. 949 towards the applicants does not meet the threshold of oppression. 5) This case is not a proper one to clarify the issues around meeting requisitions by owners.

I missed this decision when it was released in July:

Carleton Condominium Corporation No. 282 v Yahoo! Inc., 2017 ONSC 4385
Decision Date: July 18, 2017
http://canlii.ca/t/h4w8v

In November 2016 an individual with the alias “Ian Fleming” sent emails to the owners and occupants of CCC No. 282, accusing the Board of unethical behaviour (accepting kickbacks) and harassment of staff. In this decision Justice Ryan Bell granted a “Norwich order” to CCC No. 282 requiring Yahoo Canada to disclose information necessary to obtain the identity of the author of these emails.

About the image: State Archives of North Carolinahttps://www.flickr.com/photos/north-carolina-state-archives/16052444819/, No restrictions, Link