Antoni Casalinuovo

The appellant condominium owner appealed a summary judgment ordering it to pay $495,888.39 in common expense arrears and granting vacant possession to the respondent condominium corporation.

The Court of Appeal upheld the motion judge's use of enhanced fact-finding powers to resolve credibility issues and reject the appellant's claim of having paid in cash.

The Court also declined to entertain a new limitations defence raised for the first time on appeal.

However, the Court allowed the appeal in part, finding the motion judge erred by using the oppression remedy to expand the respondent's registered condominium lien to cover unsecured arrears, as doing so could prejudice third-party creditors.

The applicant condominium corporation sought an order compelling the respondent unit owners to allow access to their penthouse unit so contractors could repair an adjacent common element riser.

The respondents refused access, arguing the situation was not an exigent health and safety issue and seeking mediation under s. 132 of the Condominium Act.

The court found that s. 132 does not mandate mediation for disagreements under the Act, and that the corporation had a duty to repair the failing risers to prevent water damage under s. 117(1).

The application was granted, and the respondents were ordered to pay the remobilization costs and full indemnity costs of the application.

The applicant condominium corporation sought relief under sections 113 and 135 of the Condominium Act, alleging that the respondent declarant failed to adequately disclose the provisions of a Shared Amenities Agreement (SAA) and that the SAA's operation was oppressive.

The court found that while the declarant failed to disclose that future phases of the development would not proceed, the applicant did not prove this non-disclosure produced an oppressive or unconscionably prejudicial result.

The court dismissed the oppression claims, noting the applicant had withheld its share of expenses for over five years and should utilize the SAA's arbitration mechanism to resolve its operational disputes.

The applicant condominium corporation appealed an arbitrator's preliminary ruling that he had jurisdiction to determine whether the respondents' conduct was oppressive under s. 135 of the Condominium Act.

The applicant argued that oppression claims must be brought before the Superior Court of Justice and cannot be arbitrated.

The court dismissed the appeal, finding that the arbitrator was correct in concluding that s. 135 does not oust an arbitrator's jurisdiction to consider oppressive conduct if the dispute falls within the scope of a valid arbitration agreement.

Costs decision following mirror-image applications concerning a dispute over the use and maintenance of a commercial condominium unit.

The court found divided success, as the applicant prevailed on the principal issue regarding a waterproofing membrane, but the respondent prevailed on several subsidiary issues.

The court also considered the applicant's refusal to participate in mediation.

The court ordered each party to bear its own costs and declined to relieve the applicant of its obligation to contribute to the respondent's legal fees through its share of common element expenses, noting this would breach s. 84 of the Condominium Act.

The defendant brought a motion to dismiss the plaintiff's action for delay under Rule 24.01.

The action arose from a 2013 contractual dispute over HVAC services.

The plaintiff's counsel experienced a series of severe personal and professional crises, including the death of a colleague, illness, and a ransomware attack, which caused significant delay.

The court found the delay was not intentional and that the defendant failed to establish a substantial risk to a fair trial, noting the defendant's own failure to preserve evidence.

The motion to dismiss was denied and the action was permitted to proceed.

Cross-applications regarding the responsibility for repairing a waterproofing membrane in a commercial parking garage unit of a condominium.

The unit owner, Landont, argued the membrane was part of the common element concrete slab.

The condominium corporation, FCC 11, argued it was part of the unit and that Landont caused the damage by failing to maintain the unit.

The court held that the membrane was integrated into the concrete slab and thus formed part of the common elements, making FCC 11 responsible for its repair.

However, the court upheld FCC 11's decision to power wash the unit and charge the cost to Landont, as Landont had a duty to maintain the unit to mitigate wear and tear.

The plaintiff condominium corporation brought a motion for summary judgment seeking vacant possession of the defendant's unit to enforce a condominium lien.

The lien arose after the defendant's tenant unsuccessfully sued the corporation, resulting in costs awards and legal fees being added to the unit's common expenses pursuant to the Condominium Act and the corporation's by-laws.

The defendant, an elderly self-represented woman, argued she was not properly served and should not be responsible for her tenant's unauthorized actions.

The court granted summary judgment, finding the corporation properly served the defendant at her address for service and strictly complied with the Condominium Act.

The court held that the legislation mandates adding such costs to the common expenses to protect other unit owners, and granted the corporation possession of the unit to sell it and recover the outstanding arrears.

The applicant condominium corporation brought an application to declare the respondent unit owner a vexatious litigant.

Prior to the release of the decision, the applicant moved to adduce fresh evidence consisting of multiple new appeals and motions initiated by the respondent.

The court granted the motion to admit the fresh evidence, applying a relaxed standard since judgment had not yet been released.

Applying the Lang Michener principles, the court found the respondent's conduct met six of the seven characteristics of a vexatious litigant, including initiating multiple proceedings, failing to comply with orders, and suing opposing counsel.

The respondent was declared a vexatious litigant.

Following the dismissal of the applicant's appeal from an arbitrator's ruling, the successful respondent sought costs on a full or substantial indemnity basis.

The court considered the factors under Rule 57.01, noting that the applicant's appeal was largely without merit, caused unnecessary delay, and that the respondent had made a reasonable offer to settle.

The court awarded costs to the respondent on a substantial indemnity basis, fixed at $18,008.88.

Following the dismissal of the applicant's motion for leave to appeal, the court received costs submissions from the respondent.

The applicant filed no submissions.

Given that a previous order required the applicant to undergo a mental capacity assessment under the Courts of Justice Act and the Substitute Decisions Act, the court deferred the issue of costs until the results of that assessment are available.

A condominium corporation brought a motion seeking an order requiring a unit owner to sell her condominium unit due to persistent and serious misconduct in the building.

Evidence established repeated violent incidents and intolerable behaviour affecting residents, many of whom were senior citizens.

The respondent failed to appear despite being served multiple times.

Applying the principles governing enforcement under the Condominium Act, the court found a breach of s. 117 and concluded that the respondent’s behaviour was incorrigible and unmanageable.

The court ordered the forced sale of the unit under s. 134 and awarded full indemnity costs to the condominium corporation.