Blaine Fedson

The appellant condominium corporation appealed a Licence Appeal Tribunal (LAT) decision awarding $84,830 for a warranty claim regarding common elements, rather than the $1.5 million sought.

The LAT found that only one deficiency (gaps in caulking) was covered by the first-year warranty and that the appellant's extensive repair work went beyond what was required to fix that deficiency.

On appeal, the Divisional Court upheld the LAT's decision, finding no error of law in the LAT's conclusion that under s. 44 of the Condominium Act, a performance audit must identify the deficiency, not merely the symptom (such as water penetration).

The court also found no palpable and overriding error in the LAT's factual findings regarding the scope of consequential damages.

The appeal was dismissed with costs.

The applicants brought a motion to compel the respondent's counsel to attend an examination under Rule 39.03 and to remove the counsel and his firm as lawyers of record.

The applicants sought to examine the counsel regarding a legal opinion he provided on the validity of proxies submitted during a condominium board election.

The court dismissed the motion, finding that the legal opinion lacked the 'high materiality and necessity' required to compel opposing counsel to testify.

Consequently, as counsel would not be a witness, there was no conflict of interest warranting removal from the record.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent, Metropolitan Toronto Condominium Corporation No. 1352, was awarded costs of $30,000 on a partial indemnity basis.

The respondent Tarion Warranty Corporation was also awarded costs of $11,000, as the appellant was unsuccessful in seeking relief against it.

The appellants appealed the dismissal of a Rule 21 motion seeking to strike a condominium corporation’s action arising from alleged construction defects, including sanitary sewer failures and exterior cladding water penetration.

The court held that although Tarion’s warranty denial decisions were judicial and final for issue estoppel purposes, applying issue estoppel would work an injustice given the consumer protection purpose of the Ontario New Home Warranties Plan Act, the permissive language of the tribunal appeal provisions, the procedural limits of Tarion proceedings, and the advantage of resolving all claims in one forum.

The court further held that the civil action was not an impermissible collateral attack, that Tarion could be sued for payment from the guarantee fund, that the sanitary sewer allegations were not plainly outside the definition of major structural defect, and that the EIFS limitation argument failed.

The appeal was dismissed.

The appellant condominium corporation appealed a judgment finding that an easement had been created by proprietary estoppel.

The Court of Appeal dismissed the appeal, finding an evidentiary basis that all conditions for proprietary estoppel, including unconscionability, were met based on the course of dealings with the respondent's predecessor in title.

The Court also held that s. 50(14) of the Planning Act provided a complete answer to the appellant's arguments regarding subdivision control.

The appeal was dismissed with costs fixed at $10,000.

The appellant appealed an order dismissing its motion to set aside a default judgment and an order striking its statement of defence for failure to satisfy undertakings.

The Court of Appeal found that the appellant's former solicitors failed to act appropriately in its defence and failed to communicate with the appellant regarding the motion to strike.

Applying the principle that a client should not be irrevocably prejudiced by the neglect of their solicitor, the Court allowed the appeal, set aside the default judgment and the order striking the statement of defence, and permitted the appellant to defend the action.