Antoni G. Casalinuovo

The court granted summary judgment in favour of Metropolitan Toronto Condominium Corporation No. 1067 (MTCC 1067) against 1388020 Ontario Corp. (BSA) for arrears of common expenses, rejecting BSA’s defence that it paid in cash under alleged side agreements.

The court found BSA’s evidence not credible, held that the statutory regime under the Condominium Act could not be contracted out of, and ordered vacant possession of the units to MTCC 1067 to permit sale under the lien.

The court also found BSA’s conduct to be oppressive and unfairly prejudicial to other unit owners.

The appellants, condominium unit owners, appealed a Superior Court order that enforced a non-smoking rule against them and terminated their "Grandfather Agreement," which had previously allowed them to smoke in their unit under certain conditions.

They also sought leave to appeal a substantial costs order.

The Court of Appeal dismissed the appeal, finding no misapprehension of evidence or unfair treatment by the application judge.

The court denied leave to adduce fresh evidence, concluding it would not have affected the original outcome.

Leave to appeal costs was also denied, with the court affirming the application judge's costs award and fixing appeal costs.

Following the dismissal of its application to prevent the re-leasing of disputed lands, the applicant condominium corporation argued it should be relieved of costs because the matter was in the public interest and involved consumer protection.

The court rejected these arguments, holding that condominium corporations are subject to the standard costs regime.

The court awarded partial indemnity costs to the respondents, declining to award substantial indemnity costs based on an unaccepted monetary offer to settle because the application sought non-monetary relief.

Costs were fixed at $58,655.44 for two respondents and $35,008.44 for the third.

The applicant, York Condominium Corporation No. 76 (YCC76), sought to invalidate a lease amendment concerning "Disputed Lands" within the Crescent Town development.

YCC76 claimed a leasehold interest in the lands and alleged that the amendment, which released the lands in exchange for $500,000, was improperly approved by the board of Crescent Town Club Inc. (CTC) and constituted oppression.

The court dismissed YCC76's application, finding that YCC76 had no leasehold interest in the Disputed Lands, the board's approval was valid under the Ontario Not For Profit Corporations Act, 2010, and the lease did not require unanimous consent from YCC76.

Furthermore, the court determined it lacked broad jurisdiction to grant an oppression remedy under the ONCA, and even if it did, YCC76 failed to prove oppression or actual prejudice.

This appeal concerns a dispute between two condominium corporations regarding the cost of replacing shared electrical infrastructure (electric switchgear or ESG).

The appellant, Ottawa-Carleton Standard Condominium Corporation No. 656 (656), refused to contribute to the replacement cost, arguing that the ESG was the property of the respondent, Carleton Condominium Corporation No. 519 (519), and its maintenance was 519's sole responsibility under their respective Declarations and the Condominium Act, 1998. 519 had successfully brought an application based on unjust enrichment, arguing that 656 would be enriched by continuing to receive electricity without contributing, 519 would be deprived, and there was no juristic reason for the enrichment.

The Court of Appeal upheld the application judge's finding that all elements of unjust enrichment were met, specifically agreeing that neither the Condominium Act nor 519's Declaration imposed a statutory obligation on 519 to maintain the ESG for 656's benefit without compensation, and that the absence of a cost-sharing agreement did not constitute a juristic reason to justify the enrichment.

The appeal was dismissed.

The applicants brought a motion for consent orders to discharge construction liens and direct the return of security paid into court.

The court refused to grant the relief due to significant deficiencies in the motion materials and the proposed draft order.

These deficiencies included incorrect legal terminology (e.g., referring to discharge of a "Claim for Construction Lien" instead of a "lien"), failure to provide updated parcel registers to address sheltering liens, an improper preamble in the draft order, and an incorrect provision for the return of security that contravened Section 46(4) of the Construction Act.

The court emphasized the need for counsel to be meticulous in drafting and noted the waste of judicial resources caused by such carelessness.

This is a costs endorsement following a successful application by Halton Condominium Corporation No. 61 (HCC 61) to enforce its non-smoking rule against the respondents.

HCC 61 sought full indemnity costs of $87,377.16 or, alternatively, partial indemnity costs of $70,900.62.

The respondents argued for no costs or a lower scale.

The court awarded HCC 61 costs on an enhanced but not full indemnity basis, totaling $70,476.66, considering HCC 61's full success, their reasonable offer to settle, the Condominium Act's provisions for cost recovery, and the respondents' unreasonable conduct.

Halton Condominium Corporation No. 61 (HCC 61) brought an application under s. 134 of the Condominium Act, 1998, to enforce its non-smoking rule against the Respondents, Nikolay Kolarovaliev and Borislava Borissova.

The Respondents, who were "grandfathered" under the rule, were accused of continuously breaching their Grandfathering Agreement by allowing smoke to emanate from their unit into common areas and adjacent units.

Despite HCC 61's attempts at mediation and remediation, the issue persisted.

The court found that the Respondents repeatedly violated the Grandfathering Agreement and that their claims of political motivation were unfounded.

The court granted the application, terminating the Grandfathering Agreement and prohibiting smoking within Unit 801, allowing it only outside the building at a distance of at least nine meters from all doorways, operable windows, and air intakes.

This costs endorsement addresses the "sunk/wasted" costs incurred by the respondent, Leeds Standard Condominium Corporation No. 41 (LSCC 41), in an application that was stayed pending arbitration.

The court had previously awarded $30,000 in partial indemnity costs and remained seized for any outstanding costs not covered by the arbitration.

LSCC 41 sought an additional $64,797.63, arguing minimal reuse of application materials in the arbitration.

The applicant, Tall Ships Landing Developments, contended there was significant reuse.

The court found substantial overlap in materials and allegations, rejecting LSCC 41's premise.

Applying the principle of reasonableness, the court fixed LSCC 41's additional "sunk/wasted" costs, including costs for the current submissions, at an all-inclusive amount of $15,000.

A dispute between a condominium unit owner (Rahman) and the condominium corporation (PSCC No. 779) regarding accessible parking and alleged discrimination escalated into multiple legal proceedings.

In this action, Rahman moved for summary judgment, while the Corporation cross-moved to strike his claim as scandalous, frivolous, vexatious, or an abuse of process, or alternatively, to stay the action pending other proceedings.

The court dismissed the Corporation's motion to strike but granted its motion to stay the action, rendering Rahman's summary judgment motion moot.

The court criticized the Corporation's aggressive litigation approach and Rahman's intemperate conduct, declining to award costs to the Corporation despite its partial success.

The applicant condominium corporation sought approval of an administrator's reports, extension of his term, recovery of additional expenses incurred due to respondents' non-compliance with a prior order, and costs for two motions.

The court approved the administrator's extension and reports, ordered the non-compliant respondents to bear the additional expenses of $62,543.55, and awarded costs to the applicant on a full indemnity basis for the urgent motion ($25,809.20) and partial indemnity for the June motion ($2,750.00), all payable pro-rata by the non-compliant unit owners.

The court also allowed the applicant to use the lien mechanism under the Condominium Act for recovery.

A condominium corporation brought an urgent motion to enforce compliance with a prior consent order regarding the restoration of common element attic spaces.

The respondents, unit owners, resisted the removal of attic hatch ladders, arguing they were outside the scope of the order.

The court clarified that the removal of these ladders was essential for structural integrity and municipal compliance, as they compromised the roof trusses.

The court mandated compliance with the original order, confirming the scope included ladder removal, and granted the corporation the right to use security and locksmiths for access.

While declining to make a contempt finding immediately, the court reserved the right to reconsider it.

Carleton Condominium Corporation No. 519 (CCC 519) brought an application seeking to compel Ottawa-Carleton Standard Condominium Corporation No. 656 (OCC 656) and Carleton Condominium Corporation No. 522 (CCC 522) to share the costs of replacing a critical electric switchgear (ESG) located on CCC 519's property but serving all three condominiums.

CCC 522 agreed to contribute, but OCC 656 refused, arguing its declaration did not require it and CCC 519 was responsible for its common areas.

The court applied the doctrine of unjust enrichment, finding OCC 656 had been incontrovertibly benefited and failed to establish a juristic reason for retaining the benefit without contributing.

The court rejected the argument that the absence of a cost-sharing agreement constituted a juristic reason.

The application was granted, requiring both respondents to share costs equitably, with a reference directed for cost apportionment if necessary.

The appellant's defamation action against the respondents was dismissed on a summary judgment motion by the Superior Court, which found the action statute-barred by the Limitations Act, 2002.

The Court of Appeal for Ontario dismissed the appellant's appeal, affirming the motion judge's finding that the appellant failed to adduce credible evidence to demonstrate a genuine issue requiring trial regarding the commencement of the limitation period.

The Court also upheld the motion judge's procedural rulings, noting the appellant's failure to properly pursue remedies for refusal to cross-examine or to bring a formal motion for leave to amend her statement of claim.

The appellant, a condominium corporation, sought to appeal a motion judge's decision staying its action in favour of arbitration.

The respondents moved to quash the appeal on the basis that it was barred by section 7(6) of the Arbitration Act, 1991.

The Court of Appeal allowed the motion to quash, finding that the appeal was statutorily barred.

The court rejected the appellant's arguments that it was denied natural justice and that the pith and substance of its claim was an oppression remedy under the Condominium Act that could not be precluded by arbitration clauses.

The court found that the motion judge correctly applied the test for determining whether claims fell within the scope of arbitration clauses and that the arbitrator could determine its own jurisdiction.

This decision addresses a motion to vary or set aside a publication ban initially issued ex parte in an application concerning the appointment of an Administrator and Inspector for a condominium corporation.

The ban was sought due to threats of physical harm against former board members and affiants.

The Canadian Broadcasting Corporation (CBC) intervened, arguing for the complete setting aside of the ban, citing freedom of the press.

The court balanced the litigants' Charter rights to security of the person against the freedom of expression, applying the Dagenais/Mentuk test.

The court found a real and substantial risk of harm, concluding that the modified publication ban, which redacts names of the applicant and affiants, should remain in place to ensure the proper administration of justice and the safety of those involved.

The defendants, Tall Ships Landing Developments Inc. and Simon Fuller, brought a motion to stay the proceeding commenced by the plaintiff, Leeds Standard Condominium Corporation No. 41, in favour of arbitration.

The plaintiff brought a cross-motion to convert a previously commenced application into an action and consolidate it.

The court granted the defendants' motion to stay, finding that the pith and substance of the dispute related to alleged non-compliance with or fairness of the Shared Facilities Agreement and Shared Amenities Agreement, which fell within the scope of the contractual dispute resolution clause requiring mediation and arbitration.

The court emphasized the strong judicial favour for enforcing arbitration agreements and the "competence-competence principle." Consequently, the plaintiff's cross-motion and the defendants' alternative motions to strike or for particulars were not addressed.

Costs were awarded to the defendants.

The applicant commenced an application concerning a Shared Facilities Agreement (SFA) and the appointment of a property manager.

The respondents moved to dismiss or stay the application, arguing that the dispute fell under the SFA's alternative dispute resolution (ADR) provisions and was duplicative of existing litigation.

The court granted a stay of the application, finding that the core issues between the applicant and the primary respondent were arbitrable under the SFA.

The decision emphasized the strong policy favouring arbitration, noting that the mere invocation of an oppression remedy or the involvement of non-parties to the SFA should not automatically circumvent an agreed-upon arbitration clause if the pith and substance of the dispute is arbitrable.

The defendants brought a motion to strike the plaintiff's action, arguing the plaintiff repeatedly failed to pursue arbitration as mandated by court orders and the Condominium Act.

The plaintiff sought to have an arbitrator appointed before dismissal.

The court dismissed the action, struck the notice to arbitrate as time-barred, and awarded substantial indemnity costs to the defendants, finding the plaintiff wilfully ignored court orders and limitation periods.

The plaintiff's cross-motion to strike portions of its Status Certificate was left for the parties to resolve.

The plaintiff condominium corporation moved to amend its statement of claim to add a claim for damages related to the repair and replacement of a transformer, alleging violations of environmental regulations and fraudulent concealment by a former director.

The motion was opposed by several defendants on the grounds that the new claim was statute-barred by the two-year limitation period and constituted an abuse of process due to a pending arbitration.

The court dismissed the motion, finding that the plaintiff's claim was statute-barred as the limitation period began when its corporate solicitor received an order from Environment Canada in February 2014, putting it on notice of the damage, and that full quantification of damages was not required to start the clock.

The court also rejected the argument that a civil action was not an "appropriate means" to seek a remedy at that time.